THE LEGAL STUFF THAT NO ONE WANTS TO READAgency terms & conditions
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Partnership Agency Terms and Conditions
This Agreement is made by and between JMC BRANDS, LLC, an Ohio limited liability company located at 2640 West Market Street, Suite 202, Fairlawn, Ohio 44333 (hereinafter referred to as “JMC””) and our partner agencies (hereinafter referred to as the “Partnership Agency”). This Agreement is entered into in the City of Fairlawn, County of Summit and State of Ohio.
JMC Services. JMC is in the business of providing marketing and/or advertising services.
Scope of Services. The Partnership Agency retains JMC to provide certain marketing and/or advertising services for Partnership Agency’s clients. The marketing and/or advertising services to be provided by JMC to the Partnership Agency’s clients will be set forth on a separate Quote. The parties to this Quote will be JMC and the Partnership Agency. This Quote will provide a description or listing of the services to be provided, the time frame or due date for the providing of such services and the costs, fees and/or expenses to be incurred in the providing of such services. The terms of this Agreement are incorporated by reference in the Quote.
Partnership Agency Responsibilities. The Partnership Agency agrees to provide JMC with the information necessary for JMC to provide the services as set forth in the Scope of Services and the Quote.
Term. The parties agree that this Agreement will be in effect for twelve (12) months after the Effective Date (the “Term”). At the expiration of the then current Term, the parties agree that this Agreement will automatically renew for another twelve (12) month term unless a party provides the other party with at least a fourteen (14) day advance written notice of its intent to not renew this Agreement. At the time of the renewal of this Agreement, the parties agree to use their best efforts to review any needed modifications or amendments to this Agreement.
The parties agree that if a party is of the belief that the other party is in breach of the terms of this Agreement, that party will provide the other party with written notice of such alleged breach and the party that received the notice shall have fourteen (14) days to cure such alleged breach after receipt of such notice. If the alleged breach is not cured within such fourteen (14) day time period by the receiving party, then the party that sent the notice of breach has the ability to terminate this Agreement by providing written notice to the other party.
Fees. JMC and the Partnership Agency will agree upon the costs, fees and/or expenses to be incurred in providing the Scope of Services and the Quote. The Partnership Agency agrees that all services provided by JMC under this Agreement and the Quote will be billed directly to the Partnership Agency. The Partnership Agency agrees to be responsible for any and all fees, costs and/or expenses incurred by JMC in the performance of the Scope of Services and the Quote. JMC will send to the Partnership Agency an invoice setting forth the total amount of fees, costs and/or expenses due and owing. JMC and the Partnership Agency agree on the following payment schedule: (a) the Partnership Agency agrees to pay at least twenty-five percent (25%) of the invoiced amount within sixty (60) days after receipt of the invoice and (b) the Partnership Agency agrees to pay all remaining invoiced amounts within one hundred and twenty (120) days after receipt of the invoice. If the Partnership Agency fails to make the payments as required in this Section then such unpaid amounts will accrue interest in the amount of one point five percent (1.5%) per month or at the highest rate permitted by law. The Partnership Agency also agrees to pay for any and all costs and expenses incurred by JMC in the collection of any unpaid amount including, but not limited to, attorneys’ fees, costs and/or expenses.
Representations. JMC is not making any representations or warranties to the Partnership Agency or the Partnership Agency’s clients that the Scope of Services or the services to be provided pursuant to the Quote will provide any particular level of return on investment, increase in sales, increase in market share and the like.
Independent Contractor. Subject to the terms and conditions hereof, the Partnership Agency retains JMC as an independent contractor and JMC hereby accepts such engagement. This relationship cannot be changed or modified unless in writing and signed by both parties. Nothing contained in this Agreement shall be deemed or interpreted to constitute JMC as a partner, joint venturer, agent or employee of the Partnership Agency.
As an independent contractor, JMC shall be in control of JMC’s equipment, working methods and techniques. JMC will determine the method, details and means of performing the work to be performed pursuant to this Agreement.
JMC may, at JMC’s own expense, employ any assistants that JMC deems necessary to perform the services required of JMC by this Agreement. JMC will be solely responsible for the payment of compensation and/or wages to any such assistants employed by JMC. In addition, JMC will provide and maintain, at JMC’s expense, workers’ compensation insurance for JMC and any and all assistants employed by JMC. The Partnership Agency may not direct or control or supervise JMC’s assistants in the performance of the work to be performed pursuant to this Agreement.
JMC will supply, at JMC’s sole expense, all equipment, tools, supplies and materials necessary to perform the work under this Agreement and the Partnership Agency will not be responsible for the payment of any such items unless the Partnership Agency provides its express written consent.
JMC acknowledges and agrees that JMC shall be responsible for paying any and all taxes assessed by all federal, state and local taxing authorities relating to all compensation that JMC receives from the Partnership Agency pursuant to this Agreement, including, but not limited to all FICA, FUTA and/or employment taxes. JMC, as an independent contractor, acknowledges and agrees that JMC is not covered by the Partnership Agency under any workers’ compensation laws, unemployment compensation laws or the like as a result of this Agreement. JMC further acknowledges and agrees that JMC shall be solely responsible for paying any and all taxes assessed by all federal, state and local taxing authorities relating to any and all assistants employed by JMC in connection with the work to be performed pursuant to this Agreement, including, but not limited to all FICA, FUTA and/or unemployment taxes.
Confidential Information and Information Security. Throughout the Term of this Agreement, the parties agree as follows:
Confidential Information Defined: As used in this Agreement, the term “Confidential Information” means and includes all information disclosed to one party (“Disclosing Party”) to the other party or parties (“Receiving Party”) that (a) at the time of initial disclosure to the Receiving Party, is marked, labeled or specifically designated in writing as “Confidential Information”, or (b) qualifies as confidential information because it is information in any form whatsoever relating to the Disclosing Party’s or to any affiliate or subsidiary of the Disclosing Party (i) financial information, including, but not limited to, financial statements, projections, data and accounting systems; (ii) product specifications and designs, methods and know-how, quality assurance methods, new product development technology, prices, trade secrets and secret procedures; (iii) sales, marketing and customer information, including, but not limited to, sales projections, business procedures, the identity and lists of customers and the Disclosing Party’s, methods of marketing and promotion, advertising, marketing plans and proposals, operations, work product, names of, or agreements with, any of the Disclosing Party’s customers, or improvements in any of the foregoing; (iv) computer software, including, but not limited to, source and object codes, flowcharts, algorithms, record layouts, routines, report formats, data compilers, assemblers, design concepts, and related documentation, manuals, and other materials; or (v) discoveries, inventions, copyrights, concepts and ideas, whether patentable or not, and including without limitation the nature and result of research, development, manufacturing, marketing, planning, and other business activities.
Failure to mark, label or specifically designate information as “Confidential Information” at the time of initial disclosure to the Receiving Party shall not affect its status as Confidential Information.
Exceptions to Confidential Information: The definition of Confidential Information set forth in this Section does not include any information, which (i) was publicly available at the time of disclosure; (ii) became publicly available through no act or failure to act on the part of the Receiving Party; (iii) was already in the Receiving Party’s rightful possession prior to disclosure, as evidenced by the Receiving Party’s written record; (iv) was disclosed to the Receiving Party by a third party having no duty of confidentiality to the Disclosing Party or any other third party; or (v) is independently developed without using the Disclosing Party’s Confidential Information.
Ownership of Data and Information: Unless otherwise agreed to in writing, the Parties agree that the Disclosing Party shall retain all ownership rights, title and interest in any specifications, designs, documentary technical know-how, instructions, customer data, and all market data and analysis and other Confidential Information provided by the Disclosing Party to the Receiving Party.
Non-Disclosure and Non-Use: The Receiving Party hereby agrees that at all times, it shall (i) maintain the confidential nature of any and all Confidential Information disclosed to it pursuant this Agreement; (ii) use such Confidential Information solely to accomplish the purpose set forth in this Section; (iii) use reasonable efforts and diligence to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft; (iv) use at least the same degree of care, but no less than a reasonable degree of care, to safeguard and protect from disclosure such Confidential Information as it uses with its own confidential information that it does not wish to disclose; (v) not disclose to others, or permit any person or entity under its control to use or disclose to others, such Confidential Information, except as expressly permitted by this Agreement, or as may otherwise be expressly authorized by the Disclosing Party in writing; and (vi) provide immediate written notice to the Disclosing Party in the event it discovers a loss or unauthorized disclosure of such Confidential Information.
Permitted Disclosure: The Receiving Party may disclose the Confidential Information (i) to its employees, agents or representatives who require access to such Confidential Information to accomplish the purpose contemplated herein, but only if such employees, agents or representatives agree to treat the Confidential Information in accordance with this Agreement; and (ii) if disclosure is required by the Receiving Party pursuant to a law, judicial order or governmental directive, in which event the Receiving Party shall provide the Disclosing Party with prompt written notice of any such required disclosure, and the Receiving Party shall take reasonable steps to maintain the confidentiality of the Confidential Information.
Return of Confidential Information: The Receiving Party agrees that at the completion of the purpose contemplated herein, or within five (5) days of a request by the Disclosing Party, the Receiving Party shall (i) at the Disclosing Party’s direction, promptly return to the Disclosing Party, or destroy as specified by the Disclosing Party, all documents, disks or other material embodying the Confidential Information then in its possession, or under its control; (ii) certify its return or destruction of the Confidential Information, as the case may be, upon demand by the Disclosing Party; and (iii) not retain any copies or records of the Confidential Information except for a file to be retained by the Receiving Party’s legal counsel. The return or authorized destruction of the Confidential Information pursuant to this Section, or as a result of any termination of this Agreement, shall have no effect on the obligations imposed on the parties with respect to the protection and non-disclosure of the Confidential Information for the full period of time required under this Agreement.
Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, via electronic mail or facsimile. If such notice or demand is served personally or via electronic mail or facsimile, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given as follows:
2640 W Market St.
Fairlawn, OH 44333
Rule of Construction. The parties agree that the contract interpretation rule that a contract drafted by a party is to be construed against the drafting party is not applicable as to this Agreement.
Governing Law, Forum-Selection and Consent to Personal Jurisdiction and Venue. This Agreement will be governed by and construed solely in accordance with the laws of the State of Ohio without regard to the principles of conflicts of laws thereof. Any action arising from this Agreement shall be filed in the United States District Court for the Northern District of Ohio or in state court in Summit County, Ohio. Each party irrevocably consents to the exclusive jurisdiction and venue of any such court in any such action.
Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
Limitation of Liability. The Partnership Agency agrees to not hold JMC or its agents or employees liable for any incidental or consequential damages, awards, penalties, fines, costs, expenses or attorneys’ fees which arise from JMC’s alleged performance or alleged failure to perform any aspect of this Agreement, regardless of whether such failure was caused by a breach of contract or by intentional or negligent acts or omissions of JMC or a third party. The Partnership Agency agrees that any liability or amounts owed from JMC to the Partnership Agency for any and all reasons will be limited to the amount of compensation the Partnership Agency has paid to JMC during the most recent twelve (12) month time period. The Partnership Agency agrees that this Agreement does not and will not be construed to benefit any third party, intended or incidental.
Authority. The parties agree that the representative executing this Agreement has the authority to enter into this Agreement and bind either JMC and/or the Partnership Agency, as appropriate.
Successors and Assigns. This Agreement will be binding upon the Partnership Agency’s heirs, administrators and other legal representatives and will inure for the benefit of JMC and its respective successors and assigns.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between JMC and the Partnership Agency relating to the subject matter herein and supersedes any and all prior agreements or understandings, written or oral, between the parties relating to the subject matter herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in a writing signed by both parties.
Force Majeure. Neither party will be responsible for any delay in the performance of all or any part of this Agreement caused by acts of God and nature, court orders, war or threat of war, acts of terrorism, insurrections, riots, sabotage, strikes, lockouts or other labor or industrial disturbances, or other causes or circumstances which cannot reasonably be prevented by the party whose performance is delayed (“Force Majeure Event”). Prompt notice of any anticipated delay or failure of compliance due to a Force Majeure Event shall be provided, and the performance of the party giving notice shall be suspended for the time that such event reasonably causes such delay or failure of compliance.
No Waiver. Any failure of JMC at any time to insist upon strict performance of any condition, promise, agreement or understanding set forth herein shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same condition, promise, agreement or understanding at a future time.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile and other electronically transmitted copies of signed signature pages will be deemed binding originals.
Captions. Headings and captions throughout this Agreement are for convenience only and should not be considered part of the Agreement.
Accuracy of Information. The Partnership Agency agrees that any information that it provides to JMC pursuant to this Agreement or in furtherance of the services to be performed by JMC will be accurate and JMC has no obligation to verify the accuracy of any such information.