Marketing Services Agreement - Terms and Conditions
Terms and Conditions in conjunction with the applicable Statement of Work (the
“SOW”) serves as the Marketing Services Agreement (the
“Agreement”) is made as of the Effective Date in the applicable SOW,
and entered into by and between Client and thinkandcode.info
(doing business as think and code and referred to herein as Bthink and code) (together the
“Parties”) to work together in furtherance of the Marketing
Services set forth in the attached applicable SOW(s).
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
Bthink and code shall provide the Services
in accordance with the terms and conditions set forth herein and as more
specifically described in the attached applicable SOW(s).
Agreement. This Agreement, together with the attached applicable
SOW(s), constitutes the entire agreement between the Parties with respect
to the matters addressed herein, and may not be modified or amended except
by a duly executed written amendment, or except as otherwise expressly
provided in an applicable SOW(s).
Each party to this Agreement represents and warrants
to the other party that: (i) such party has the necessary and full
rights, consents and authority to enter into this Agreement and to
perform its obligations hereunder (including, providing any right and/or
license grant); (ii) the execution and performance of this Agreement by
such party does not and will not violate any agreement to which such
party is a party or by which it is otherwise bound; and (iii) when
executed and delivered by such party, this Agreement will constitute the
legal, valid, and binding obligation of such party, enforceable against
Each party acknowledges that the other party does not
guarantee the sequence, accuracy, completeness, or timeliness of the data
and information provided hereunder.Accordingly, anything to the contrary herein notwithstanding,
neither party, nor their affiliated companies, and their officers and
employees, parents, subsidiaries, successors, and assigns shall be
liable, directly or indirectly, in any way, to the other party, or to any
other person or entity for: (i) any inaccuracies or errors in or omission
of any information or data therein; (ii) any delays or errors in the
transmission or delivery of any part thereof; or (iii) any loss or damage
arising therefrom or occasioned thereby, or by any reason of
nonperformance, or interruption in any such information or data
transmitted by either party or their affiliated companies for any reason.
Indemnification. Each party
(“Indemnifying Party”) agrees to indemnify, defend, and hold
harmless the other party (and its affiliates, and their officers,
directors and employees) from and against all claims, demands,
liabilities, suits, damages, costs and expenses of every kind and description,
including penalties and reasonable attorneys’ fees, resulting from
any claim, action or proceeding brought by a third party that its
intellectual property or other proprietary rights were infringed or
misappropriated by the Indemnifying Party.
NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS OR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED WITH RESPECT TO CLAIMS UNDER THIS AGREEMENT;
PROVIDED THAT THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO (A)
ANY INDEMNIFICATION OBLIGATIONS HEREUNDER, (B) GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF A PARTY, OR (C) BREACHES OF ANY CONFIDENTIALITY
Bthink and code’S AGGREGATE LIABILITY FOR ALL DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT,
OR OTHERWISE, SHALL BE LIMITED TO THE Bthink and code REVENUE (DEFINED BELOW) IN
CONNECTION WITH THE SERVICES GIVING RISE TO THE LIABILITY AND IN THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE SERVICES GIVING RISE
TO SUCH LIABILITY. “Bthink and code REVENUE” MEANS THE REVENUE RECEIVED
BY Bthink and code FROM CLIENT FOR THE SERVICES GIVING RISE TO THE LIABILITY, LESS
ANY OF Bthink and code’S COSTS, EXPENSES AND FEES EXPENDED TOWARDS SUCH
Relationship. Each party is an independent contractor of the other,
not a partner, agent or joint venturer and as such shall provide and
maintain its own Worker’s Compensation Insurance on all of its own
employees.No further business
relationship is inferred beyond the terms of this Agreement and neither
party shall hold itself out contrary to these terms by advertising or
otherwise, nor shall either party be bound by any representation, act or
omission whatsoever of the other.Nothing in this Agreement precludes either Bthink and code or Client from
creating, directly or indirectly, other copyrightable audio, video or
other content on the same subject matter as the content within the scope
of this Agreement, or engage in other activities related to this subject
Confidential Information. All information contained in
this Agreement, including, but not limited to, pricing and/or fees for
the Marketing Services, will remain proprietary and confidential.
Furthermore, each Party agrees to keep confidential, using the same level
of care as such non-disclosing Party would treat its own confidential
information, any additional information of the other Party to which such
non-disclosing Party becomes privy during the course of performing its
duties hereunder. Notwithstanding the foregoing, a party may disclose the
confidential Information of the other party to any court or regulatory
authority of competent jurisdiction if the disclosure is required by law
or by an order of such court or regulatory authority, provided that if legally
permissible, as much notice as is reasonably possible shall be given to
the other party before to such disclosure.
Data. Each party agrees that any
personally identifiable data it obtains pursuant to the Agreement shall
be collected, used, stored, and disclosed in accordance with all
applicable laws and regulations regarding data privacy, consumer data,
privacy protection, etc., as well as such party’s standard privacy
policy, which each party agrees is consistent with all industry
standards regarding the same.
Names and Marks. Each Party grants to each other the
right and license to use its respective names, marks and IP as set forth
in the applicable SOW(s), solely for the uses described in the applicable
SOW(s). Other than the above, each Party agrees not to use the
other’s names, marks or other IP without such other Party’s
specific prior written permission, including, without limitation, use in
client lists and promotional materials. Neither Party shall acquire any
right or license by virtue of this Agreement in or to each other’s
names or marks, other than the limited right to publish and distribute
them solely in accordance with the terms of this Agreement.
Non-Infringement. Each Party represents and warrants
to the other that the material it furnished or furnishes pursuant to this
Agreement does not and will not violate any rights of copyright,
property, trademark or service mark, or rights or privacy or publicity of
any third party, or violate any state or federal statute or regulation,
or contain any matter that is libelous or would be injurious to the user.
Releases. Each Party represents and warrants to the
other that it has obtained all necessary releases and license from any
person or entity whose name, picture, likeness, voice, trademark, trade
name, logo, proprietary materials or property appears in the material
that it furnished, and that it has paid or shall promptly pay when due
(or third parties have paid) any and all residuals, reuse, royalty
payments and other fees, taxes, charges or compensation of any kind,
however denominated, that are due or may become due by reason of the
other Party’s full exercise of any and all of its rights hereunder,
with the other Party to have no responsibility or liability therefor.
All Rights Reserved. All rights, title and interest
with respect to a Party’s IP shall remain the sole and exclusive
property of the original Party, and such Party shall have the continuing
right to freely exercise any and all such reserved rights, title and
interest throughout the world at any time without prior notice or any
obligation to the other Party whatsoever.
Insurance. Each Party represents and warrants to the other that
it currently has and will maintain insurance coverage of a kind and in an
amount that is commercially reasonable to cover its activities and the
performance of its obligations under this Agreement.
Law.This Agreement and the legal
relations among the parties hereto shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia regardless of the
laws that might otherwise govern under applicable choice-of-law
principles. The parties hereto, their successors and assigns, consent to
the jurisdiction of the federal and state courts located in Arlington
County, Virginia with respect to any legal proceedings that may result
from dispute as to the interpretation or breach of this Agreement and each
party hereby waives any objection to the propriety or convenience of venue
in such courts.
Waiver. The failure of either Client
or Bthink and code to enforce or exercise any right under this Agreement shall in no
way be construed to be a waiver of such right to insist upon strict
compliance with the obligations or the terms herein.
Assignment.Client may not assign this
Agreement or any right or obligation hereunder without the prior written
consent of Bthink and code.
of Clauses.The terms of this Agreement are
severable such that if any term or provision is declared by a court of
competent jurisdiction to be illegal, the remainder of the provisions
shall continue to be valid and enforceable.
Majeure. Neither Party shall be deemed
in breach or default of this Agreement or any provision hereunder to the
extent that any delay or failure in the performance of its obligations
results from an act of God or public enemy, civil unrest, fire, flood,
earthquake or unusually severe weather beyond its reasonable control and
without its fault or negligence.
Counterparts.This Agreement and any
modifications, waivers or notifications relating thereto may be executed and
delivered by facsimile or electronic mail, which shall constitute the final
agreement of the parties and conclusive proof of such agreement. The Parties
may sign in counterparts, and such counterparts, taken together, shall
constitute the full and complete agreement.
Survival.Provisions that by their terms or nature are intended to survive
the performance, termination or expiration of this Agreement shall survive
and shall continue in full force and effect including, without limitation,
indemnification, limitations of liability and confidentiality provisions.
Termination. In the event that either party to this Agreement
shall fail to perform or observe any material term, covenant, agreement or
warranty or if any representation contained herein is untrue, the other
party may immediately terminate this Agreement if such failure is not
corrected within ten (10) business days after delivery of written notice
thereof to the party in default.
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