MARKETING SERVICES ENGAGEMENT AGREEMENT
This MARKETING SERVICES ENGAGEMENT AGREEMENT (the “Agreement”) is made, entered into and effective as of “the date electronic payment is received” (the “Effective Date“), by and between Arellano Brand Co, LLC, a California limited liability company dba ABC Brand Design, with offices located at 2130 E Mariposa Ave., Ste 704 El Segundo, CA 90245 (“Consultant”), on the one hand, and [ONLINE CUSTOMER], (“Client”), on the other hand, with reference to the following facts:
R E C I T A L S
WHEREAS, Consultant is a graphic design, product design and visual rights creative business, with experience as a Marketing Professional;
WHEREAS, Client is interested in obtaining the non-exclusive services of Consultant, as Marketing Consultant (as set forth in the service description as defined by the Scope of Work);
WHEREAS, the parties desire to commit their understanding to this writing.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other good and valuable consideration, Client and Consultant hereby agree as follows:
ARTICLES OF AGREEMENT
- Recitals. The RECITALS above stated are hereby incorporated into this Agreement.
- Engagement; Non-Exclusive.
2.1 Client hereby engages Consultant, and Consultant hereby accepts such engagement, to perform the services set forth in the service description Exhibits “A” or “B” or “C” (the “SOW”), attached hereto and incorporated herein by this reference, (such services, collectively, the “Services”).
- Term and Termination.
3.1 The term of the engagement by Client shall commence as of the Effective Date first stated above and shall continue until the earlier of: (i) presentment to Client by Consultant of all Deliverables (as set forth on the SOW) or (ii) [two (2) weeks from the Effective Date] (the “Term”), unless or until earlier terminated, by Client or Consultant, upon a material breach of any term of this Agreement by the other party.
3.2 Termination of the Term of this Agreement shall not affect those obligations of the respective parties intended to survive expiration or termination hereof.
- Independent Contractor Status.
4.1 As between Client and Consultant, Consultant shall determine in its sole discretion the means and methods to be utilized to achieve the results requested in the description of Services, including the exact hours and days necessary to perform the Services engaged hereunder.
4.2 As between Client and Consultant, Consultant shall be responsible for performing all duties incident to operating a business, including, but not limited to, obtaining all necessary business licenses and paying all applicable taxes. Consultant shall use or hire employees to perform the Services required to be performed by Consultant, and Consultant shall be responsible for the services performed by any said employees. To the extent Consultant hires any employees, Consultant shall be responsible for all compensation and shall provide for workers’ compensation insurance for said employees and further promises to withhold and pay all appropriate payroll taxes related to such work.
4.3 Both Client and Consultant agree and intend that Consultant will be an independent contractor and not an employee of Client. Client and Consultant agree that no taxes will be withheld from payments to Consultant, that Consultant will receive a Form 1099 and not a Form W-2, and that Consultant will pay all required federal and state taxes on the income received for services rendered for Client. Consultant agrees to, and fully intends to, report all 1099 income received for such work, and to pay all state and federal taxes due for such income.
- Compensation.
5.1 In consideration for the performance by Consultant of the Services, commencing as of the Effective Date above, Consultant shall be paid by Client: (i) a total consulting fee equal to that of the Service selected and purchased electronically online at www.abcbranddesign.com/checkout
5.2 Electronic payment of the Fee to be made by Client to Consultant via the Consultant website www.abcbranddesign.com/store in advance of services.
5.3 In the event that Consultant is requested to perform any other or additional services which are not Services described in the original purchase of Exhibits “A”, “B”, or “C”, Client may, at their own discretion, renew with the purchase of additional Exhibits “A”, “B”, or “C” services.
- Expenses; Other Financial Covenants.
6.1 Consultant shall additionally be entitled to reimbursement of any reasonable and necessary third party expenses incurred in connection with its performance under this Agreement as long as written approval is provided prior to.
- Indemnity.
7.1 Indemnity by Client. In addition to any other indemnity called for hereunder, Client agrees to indemnify, defend and hold Consultant harmless from and against any claim or liability or threatened claim or liability, including the reimbursement of attorney’s fees, arising from the performance of Services by Consultant hereunder or the operation of Client’s business (such as, without limitation, product liability, breach of law by Client and/or the acts or omissions of Client, with the exception of any claim or liability arising out of the negligence, gross negligence or wrongful acts or omissions of Consultant or any Consultant or agent of Consultant.
7.2 Indemnity by Consultant. In addition to any other indemnity called for hereunder, Consultant agrees to indemnify, defend and hold Client harmless from and against any claim or liability or threatened claim or liability, including the reimbursement of attorney’s fees, arising from: (i) the negligence, gross negligence or wrongful acts or omissions of Consultant or any Consultant or agent of Consultant, including the infringement of the intellectual property rights of a third party, and/or (ii) a breach of any representation, warranty or covenant made herein by Consultant.
- Omitted.
- No Agency. Unless agreed by Client (such as, without limitation, approved media buys or other obligations or budgeted items where Client has requested Consultant to negotiate and enter into such agreements), Consultant shall have no authority to enter into any contract on Client’s behalf or otherwise commit or bind Client in any way. Consultant agrees not to act in such a manner as would imply or create an assumption on the part of any third party that Consultant possesses the authority to bind Client.
- Taxes; Indemnification. Client shall not withhold any tax or tax deposit from payments made to Consultant hereunder, and, in addition to its other indemnities hereunder, Consultant shall hold Client and its affiliates harmless from and against any and all liability to any taxing authority, whether domestic or foreign, relative to payments made by Client to Consultant hereunder.
- Trade Secrets and Confidential Information; Non-Solicitation; Non-Disparagement.
11.1 Information. Consultant shall have access to confidential or proprietary information of Client, which information which may or may not constitute a “trade secret” of the Client (the “Confidential Information”), and which is information made available to Consultant as a result of his relationship to Client which is not readily accessible to other persons in the trade not employed by Client. “Confidential Information” shall include but not be limited to the design and pricing of past, present and future products; manufacture and finishing techniques; cost of raw materials; and actual or potential merchandising or branding strategies. Consultant also acknowledges that he will have substantial and ongoing contact with Client’s customers and suppliers and will thereby gain confidential knowledge of individual customer needs and preferences; sources of supply; and other valuable information necessary for the success of Client’s business. Consultant agrees that Consultant shall at no time during the Term hereof or thereafter disclose to any person or entity, or use for personal gain, any of the Confidential Information of or pertaining to Client or its products and services. All references to Client in this paragraph 11 shall be deemed to also include each and every person, corporation or firm which is in control of, controlled by or under common control with Client as of the date of termination. Consultant hereby agrees that the remedy at law for breach of this paragraph 11 of this Agreement is inadequate, and Client shall be entitled, in addition to any other remedies, to seek and obtain against Consultant and/or third party to whom Consultant discloses or is about to disclose any information in breach of this paragraph 11, temporary and injunctive relief for any breach or threatened breach of this paragraph 11 without proof of any actual damages that have been or may be caused to it by such breach.
11.2 Exceptions. This paragraph 11 shall not preclude the Consultant from use or disclosure of information known generally to the public or the trade or of information not considered confidential by persons engaged in the businesses conducted by Client, or from disclosure required by law or court order. Consultant also agrees that upon termination of the Term, Consultant will not take with him/her, without the prior written consent of an authorized officer of Client, and he/she will surrender to Client, any record, list, pattern, drawing, design, specification or other document or property of Client or any subsidiary thereof, together with any copy or reproduction thereof, mechanical or otherwise, which is of a confidential nature relating to Client, its products, or those of any affiliate thereof, or without limitation, relating to its or their methods of distribution, suppliers, customers, customer relationships, marketing strategies or any description of any formulae or secret processes, or which was obtained by Consultant or entrusted to Consultant during the course of Consultant’s relationship with Client.
11.3 Non-Solicitation. Except to the extent such restriction is prohibited by law, during the Restricted Period, Client agrees that it shall not, directly or indirectly: (i) solicit or induce any employee or consultant of Consultant or any affiliate of Consultant to resign or leave such party for any reason whatsoever; or (ii) hire or attempt to hire any employee or consultant of Consultant or any affiliate of Consultant. Client understands that the above restrictions are necessary to protect the confidentiality of Consultant’s confidential information and trade secrets, and Client warrants that said restrictions will not prevent Client from earning a living.
11.4 Non-Disparagement. During the Restricted Period, neither Consultant nor Client shall take any action to publically disparage or criticize the other party, its employees, officers, directors or owners. Nothing contained in this Section 11.5 shall preclude either the Consultant or Client from enforcing their respective rights under this Agreement or responding truthfully to legal process or governmental inquiry.
- Assignment of Inventions and Innovations.
12.1 All designs, artwork, innovations, inventions, works of intellectual property and all rights therein, including, without limitation, copyrights and copyrightable subject matter, trademarks, trade names, trade secrets, inventions, patents and other intangible rights, that may be conceived or developed by Consultant that contain the Confidential Information of Client in connection with Consultant’s retention by Client (each, and collectively, the “Works”), shall be the sole property of Client.
12.2 Upon full payment to Consultant of all consideration, including the full Fee, Consultant agrees, without further consideration, to execute all documents, including but not limited to patent, copyright and/or trademark registration applications and certificates, assignments or other documents affecting the rights of Client. Upon full payment to Consultant of all consideration, including the full Fee, Client shall own all right, title and interest in and to any and all patents, copyrights and trademarks related to or embodied by or in the Works, all moral rights, and all accrued rights of action for infringement thereof, and any such works shall be deemed a “work made for hire” owned solely by Client, whether or not such material is published or otherwise used by Client. In the event (and to the extent) that any Works of Consultant, or any part or element of them, is found as a matter of law not to be a “work made for hire” within the meaning of the Copyright Act, upon full payment to Consultant of all consideration, including the full Fee, Consultant hereby assigns to Client the sole and exclusive right, title and interest in and to all such Works, and all copies of them, and, in the event that assignment is not permitted by a reviewing court, Consultant hereby grants Client a royalty-free, non-exclusive and worldwide license to use the Works in perpetuity and without further consideration. The covenants of this section are intended to survive expiration or termination of this Agreement.
- Relationship of Parties. Consultant is an independent contractor and, by virtue of the services performed under this Agreement, neither an employee, partner, agent, or joint venturer of Client, and Consultant acknowledges that under this Agreement he/she is entitled to no vacation, sick leave, medical, insurance or other benefits afforded any employee of Client.
- General Provisions.
14.1 Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any party to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Consultant:
Arellano Brand Co, LLC
2130 E Mariposa Ave., Ste 704
El Segundo, CA 90245
Attn: Sam Arellano
Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent or mailed in the manner described above shall be deemed sufficiently given, served, sent, received or delivered for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or at such time as delivery is refused by the addressee upon presentation).
14.2 Entire Agreement. This Agreement constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, written or oral, among the parties with respect to the subject matter described herein. All references herein to paragraphs shall be deemed references to such parts of this Agreement, unless the context shall otherwise require.
14.3 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all, of the parties hereto.
14.4 Assignment; Binding Effect. This is a personal services agreement and Consultant shall not assign this Agreement to any other person or party for any reason, without the prior written consent of Client, which may be withheld at Client’s discretion for any reason. Client may assign its rights hereunder at any time. Except as so limited by the foregoing herein this paragraph, this Agreement and all conditions and provisions hereof are intended to and shall be binding upon and inure to and be for the sole and exclusive benefit of the parties hereto and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person any legal or equitable benefit, right, remedy or claim under or in respect of this Agreement or any provision herein.
14.5 Further Assurances. Each of the parties shall execute such documents and perform such further acts as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement.
14.6 Severability. If any term, provision, covenant or restriction of this Agreement is found by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect to the maximum extent permitted by law and shall in no way be affected, impaired or invalidated by such a finding.
14.7 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
14.8 Interpretation. This Agreement shall be deemed to have been prepared jointly by the parties hereto after arms’ length negotiations and any uncertainty or ambiguity existing herein, if any, shall not be interpreted against any particular party but shall be interpreted according to the application of the rules of interpretation of contracts.
14.9 Gender, Plurals, Other Construction. Whenever required by the context hereof, the singular shall be deemed to include the plural, the plural shall be deemed to include the singular; the masculine, the feminine and neuter gender shall be deemed to include the others.
14.10 Amendments, Modifications. No amendment, modification or discharge of this Agreement shall be void or binding unless set forth in writing and signed by each of the parties.
14.11 Governing Law. This Agreement shall be governed in all respects (including validity, interpretation and effect) by and construed in accordance with the laws of the State of California (excluding the choice of law provisions thereto).
14.12 Jurisdiction and Venue. Each party consents to the exclusive jurisdiction and venue of the state courts located in the County of Los Angeles, CA and, as applicable, the federal courts of the Central District of California, in connection with any dispute arising hereunder, and further consents and submits to the personal jurisdiction of those courts with respect to any such dispute.
INTENDING TO BE BOUND, the parties have executed this Agreement upon receipt of electronic payment by Client recognized as of the Effective Date above.
Exhibit A “Consultative Service”
8 Dedicated hours
1:1 Coaching
Analysis & Insights
Strategic Assessment
Exhibit B “Consultative and/or Executional Service”
16 Dedicated hours
1:1 Coaching
Analysis & Insights
Strategic Assessment
(1) Deliverable
Exhibit C “Consultative and Executional Service”
24 Dedicated hours
1:1 Coaching
Analysis & Insights
Strategic Assessment
(1) Deliverable
Communication access via Slack/Goggle Meet
All Exhibits –term is two weeks. Hours are allotted weekly.
Time is tracked in :15 min increments. Hours do not roll over.