The following document outlines the typical terms under which NetSpinnr transacts engagements with Clients. Any and all terms within this document are superseded by those contained within individual client Statements of Work.
1. Services.
NetSpinnr agrees to perform marketing services for Client as more particularly described in one or more Statements of Work, the form of which is attached hereto as Exhibit A (the “Services”). Any conflict or inconsistency between the provisions of this Agreement and any executed Statement of Work shall be resolved by giving precedence to the executed Statement of Work under which the Services are to be performed and then to this Agreement.
1.1. Change Request.
Changes to the scope of the Services shall be made only pursuant to a written change request agreement. The foregoing notwithstanding, if NetSpinnr, at the request of or with notice to Client, performs work that is not covered by a Statement of Work or Change Request or that exceeds the scope of Services defined in the applicable Statement of Work or Change Request, such work shall be deemed Services provided pursuant to this Agreement for which Client shall compensate NetSpinnr pursuant to Section 2.
2. Fees and Payment Terms.
2.1. Fees.
In exchange for the Services performed by NetSpinnr, Client agrees to compensate NetSpinnr the fees described in the applicable Statement of Work. Such fees are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein.
2.2. Expenses.
Client shall reimburse NetSpinnr any expenses incurred in performing the Services if such expenses are set forth in the Statement of Work or otherwise pre approved in writing by Client.
2.3. Payment Terms & Late Fee.
Unless otherwise stated in the applicable invoice or Statement of Work, Client’s payment of the fees and expenses described herein shall be due upon project delivery date. A late charge of one and one-half percent (1.5%) per month, or the legal maximum if less, shall accrue on past due billings unless Client notifies NetSpinnr of a billing dispute in writing prior to the payment due date. Client shall be responsible for any costs incurred by NetSpinnr in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of the outstanding balance due.
3. Term and Termination.
3.1. Initial Term.
The term of this Agreement will commence on the Effective Date set forth above and will continue in full force and effect for six (6) months thereafter unless terminated earlier pursuant to the provisions of this Section. In the event that a Statement of Work provides for a different term, the Statement of Work term will control for that specific Statement of Work only.
3.2. Renewal.
This Agreement may be extended beyond the initial term by mutual written agreement of the parties. Renewal may be effective through email or other writing.
3.3. Termination by Either Party.
Either party may terminate this Agreement or any Statement of Work, at any time and for any reason, by providing written notice to the other party of its intent to terminate at least four (4) weeks prior to such termination.
3.4. Termination Upon Breach.
Either party may terminate this Agreement or any Statement of Work upon a material breach of this Agreement or of such Statement of Work by the other party if such material breach is not cured within three (3) days of receipt of written notice of such breach.
3.5. Payments Due.
The termination of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
4. Relationship of the Parties.
4.1. Independent Contractor.
For all purposes hereof and in the performance of its obligations under this Agreement, NetSpinnr is and shall remain an independent contractor and nothing in this Agreement or in a Statement of Work shall be deemed or construed to create an employer/employee, joint venture, or partnership relationship between NetSpinnr and Client.
4.2. Client Obligations.
Client shall obtain all consents necessary from third parties required for NetSpinnr to perform its obligations herein or in any Statement of Work issued hereunder. Client shall be responsible for its operation and use of any deliverables associated with the Services, and for ensuring that the deliverables meet Client’s requirements.
4.3. Limitations on Authority.
Neither party shall have any right, power, or authority to bind the other party to the fulfillment of any condition, contract, or obligation or to create any liability binding on the other party.
4.4. Method of Performing Services.
NetSpinnr will determine the method, details, and means of performing the Services required by this Agreement. Client shall have no right to, and shall not, control the manner or determine the method of performing the Services.
4.5. Personnel.
NetSpinnr shall have sole discretion over the identity of its personnel used to provide the Services, provided that NetSpinnr shall ensure that the personnel are in all cases suitably qualified.
4.6. Non-Exclusivity.
Client recognizes that NetSpinnr may perform similar services from time to time for other persons or entities, and this Agreement shall not prevent NetSpinnr or any of its personnel from performing any such similar services for such other persons or entities.
5. Proprietary Items and Intellectual Property.
5.1. Proprietary Items.
In the course of performance hereunder, NetSpinnr may use products, materials, educational content, tools, strategies and methodologies that are proprietary to NetSpinnr or to third parties (collectively “Proprietary Items”). As between Client and NetSpinnr, Proprietary Items will be deemed Confidential Information of NetSpinnr for purposes of Section 6. Client shall have or obtain no rights in such Proprietary Items (or in any modifications or enhancements to them) other than (i) to use them as authorized by NetSpinnr in writing from time to time solely for purposes of performing Client Responsibilities, or (ii) to the extent the Proprietary Items are incorporated into a Deliverable, to use them as part of the Deliverable for purposes of the specific client or project they were shared by NetSpinnr. If Proprietary Items are made available to Client under (i) or (ii) above, they will be made available in an “AS IS” condition and without express or implied warranties of any kind. Without limiting NetSpinnr’ obligations under Section 6 of this Agreement, in no event shall NetSpinnr be precluded from developing for itself, or for others, materials which are similar to the Deliverables. NetSpinnr shall remain free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of providing the Services hereunder.
5.2. Intellectual Property of Client.
Except as otherwise provided in this Agreement or a Statement of Work, all materials and intellectual property, including without limitation documents, information, reports, analysis, artwork, logos, graphics, text, and other materials, that are furnished or created by Client or are developed by NetSpinnr specifically for, or on behalf of, Client in the process of performing the Services shall be the property of Client. All such materials and intellectual property shall be considered a “work made for hire” as that term is understood under the copyright law of the United States so that all copyright and other proprietary interests in the work shall vest at the time of their creation in Client.
5.3. Limited Use of Educational Materials.
If NetSpinnr provides video, online, or physical educational instruction to Client (“Educational Materials”), Client hereby acknowledges that the Educational Materials remain the Intellectual Property of NetSpinnr. NetSpinnr will grant Client a limited license for use of the Educational Materials by the Client entity for its employees. Client agrees not to disseminate or reproduce the Educational Materials for any third parties. If Client shares the Educational Materials with a third party or represents them as their own, Client will be responsible for all damages and costs related to the misuse of the Educational Materials, including, without limitation, settlement sums, attorney fees, expert fees, alleged or incurred in connection with from any claim or suit arising from the improper use of the Educational Materials.
6. Confidentiality.
6.1. Definition of Confidential Information.
During the course of this Agreement, either party may receive or have access to information, whether oral or tangible, that the other party considers confidential or proprietary, including, without limitation, all methods, reports, information and data in whatever form, designs, products, processes, materials, suppliers, costs, operations, trade secrets, strategies, technical or patent information, marketing data, and personal information (“Confidential Information”).
6.2. Obligations.
During the course of this Agreement and indefinitely thereafter, the receiving party will not, without first obtaining the disclosing party’s written consent, disclose Confidential Information of the disclosing party to any third party or use such information for any purpose other than for the limited purposes of this Agreement. The receiving party will take all appropriate steps to safeguard Confidential Information and to protect such information against disclosure, misuse, loss or theft.
6.3. Exceptions.
Confidential Information shall not include: (i) information generally available to, or known to, or which becomes known by, the public through no wrongful act of the receiving party; (ii) information lawfully known by the receiving party prior to disclosure hereunder; (iii) information disclosed by a third party, which is not bound under a confidentiality obligation to the disclosing party, to the receiving party; (iv) information independently developed by the receiving party without the use of information disclosed by the disclosing party; and (v) information lawfully required to be disclosed to any governmental agency or which is otherwise required to be disclosed by law, provided that before making such disclosure the receiving party will try to give the disclosing party an adequate opportunity to object to such disclosure or take action to assure confidential handling of such information.
7. Non-Solicitation.
7.1. Clients.
During the term of this Agreement and for a period of one (1) year thereafter, each party agrees not to solicit any person or entity who is, or was at any time during the one(1)-year period immediately prior to the termination of this Agreement, a client of the other party, or a potential client known by both parties to have been actually solicited by the other party, for the sale of any product or service of a type then sold by the other party.
7.2. Business Relationships.
Each party agrees not to solicit, encourage, or induce, or cause to be solicited, encouraged, or induced, directly or indirectly, any franchisee, joint venture, supplier, vendor, employee, or contractor who conducted business with the other party at any time during the term of this Agreement, to terminate or adversely modify any business relationship with the other party, or not to proceed with, or enter into, any business relationship with such party. Each party agrees not to otherwise interfere with any business relationship between the other party and any such franchisee, joint venture, supplier, vendor, employee, or contractor.
8. Warranties.
8.1. Warranty of Authority and No Conflict.
Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit, or be contrary to any other agreement.
8.2. Professional Manner.
NetSpinnr warrants that all services will be performed in a professional manner with the general standards and practices of the applicable industry.
8.3. No Additional Warranties.
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES RELATED TO INFORMATION OR BUSINESS ADVICE PROVIDED AND WARRANTIES RELATED TO OUTCOMES BASED ON INFORMATION OR ADVICE PROVIDED. CLIENT ACKNOWLEDGES AND AGREES THAT NETSPINNR MAKES NO GUARANTEES REGARDING ANY PARTICULAR OUTCOMES OR RESULTS.
9. Indemnification.
Each party agrees to indemnify, defend, and hold harmless the other party and its directors, officers, agents, and employees from and against all costs, losses, and litigation expenses incurred through claims of third parties which claims arise out of any negligent, reckless, or intentionally wrongful act of the indemnifying party, improper use of a third party’s intellectual property, or any breach of this Agreement by the indemnifying party.
10. Limitation of Liability.
In no event shall NetSpinnr be liable to Client for any loss of revenue or profit, or for any consequential, incidental, indirect, exemplary, special or punitive damages. In no event shall NetSpinnr’s aggregate liability arising out of or related to this Agreement exceed the aggregate amounts paid or payable to NetSpinnr by Client during the six (6) months preceding the event giving rise to the claim.
11. Additional Provisions.
11.1. Force Majeure.
Neither party will be liable to the other, or will be considered to be in breach of this Agreement, on account of any delay or failure to perform as a result of any acts of God, acts of any political entity, pandemics, natural disasters, or any other causes or conditions that are beyond such party’s reasonable control. Should any such event occur, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
11.2. Entire Agreement.
This Agreement and any Statements of Work executed hereunder embody the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
11.3. Survival.
All obligations that by their terms or nature survive termination of this Agreement will continue indefinitely or until fully performed.
11.4. Amendment.
This Agreement may be amended, modified, terminated, rescinded, or supplemented only by written agreement of the parties hereto.
11.5. Assignment & Third-Party Rights.
This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other party. No third party shall have any rights hereunder.
11.6. Severance.
If any provision of this agreement is held invalid, unenforceable or illegal for any reason by a court of competent jurisdiction, the validity, enforceability, or legality of the remainder of this agreement shall not be in any way affected or impaired thereby.
11.7. Waiver & Consents.
Any failure of a party to comply with any obligation, covenant, agreement or condition herein may be waived by the party affected thereby only by a written instrument signed by the party granting such waiver. No waiver, or failure to insist upon strict compliance, by any party of any condition or any breach of any obligation, term, covenant, representation, warranty or agreement contained in this Agreement, in any one or more instances, shall be construed to be a waiver of, or estoppel with respect to, any other condition or any other breach of the same or any other obligation, term, covenant, representation, warranty, or agreement. Whenever this Agreement requires or permits consent by or on behalf of any party hereto, such consent shall be given in writing in a manner consistent with the requirements for a waiver.
11.8. California Law.
This Agreement shall be subject to and governed by the laws of the State of California excluding such State’s conflict of laws rules.
11.9. Jurisdiction and Venue.
The parties agree that the federal and state courts of the State of California will be the exclusive courts of jurisdiction and venue for any litigation or other proceeding between the parties that may be brought, or arise out of, in connection with, or by reason of this Agreement shall be San Francisco County, California, and the parties hereby irrevocably waive any and all objections to jurisdiction or venue that they may have under the laws of California or the United States.
11.10. Attorney’s Fees.
In the event a party hereto institutes a proceeding against the other party hereto for a claim arising out of or to enforce this Agreement, the losing party shall pay the reasonable attorney’s fees incurred by the prevailing party in connection with such proceeding.
11.11. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
12. Our Address
NetSpinnr, LLC
60 29th St. #316
San Francisco, CA, 94110, USA