Primitive will provide digital marketing services, content, and strategies specific to you; however, Client acknowledges that the Services are not being provided on an exclusive basis and that Primitive performs similar services for other clients. Service requests outside of the retainer go through a digital project request form. In the performance of the Services, Primitive will consult with you regarding digital marketing strategies and content. You will provide the final approval of Services; however, Primitive shall exclusively direct and control the development of Services. Failure of Client to deliver all necessary information, as requested by Primitive, in order for Primitive to perform Services will constitute a breach of this agreement and Client shall not subsequently hold Primitive liable for failure to deliver Services.
Client acknowledges that Primitive is an independent contractor and Client agrees to execute or provide any necessary tax forms to Primitive including, but not limited to an Internal Revenue Service Form 1099-MISC.
As full compensation for the Services, you shall pay the amount per the terms described in the Proposal. Primitive will deliver to you a statement of services rendered (the “Invoice/Sales Receipt”). As your partner, Primitive will safeguard the security of your billing account and payment information.
Expenses other than ordinary and necessary business expenses shall also be charged to you and included on the Invoice. Examples of expenses that will be charged to you include, but are not limited to services requested outside the scope of the Proposal and travel by Primitive employees at your request.
Payments made to Primitive are non-refundable. Primitive will not deliver any Services; turn over any files, documents, or content; or relinquish control of any website or social media account to you unless and until the Invoice is paid in full for services rendered and invoiced. If at any time, Primitive provides Services to you without having been paid in full for services rendered, such action by Primitive shall not constitute a waiver of this provision.
3. NON-SOLICITATION AND LIQUIDATED DAMAGES
Client and Primitive mutually agree that during the term of this Agreement and for a period of twenty-four (24) months following the termination or expiration of this Agreement, Client and Primitive, and any affiliated companies, shall not make any solicitation to employ or actually employ the “Personnel” (employee, contractor, or consultant) of the other party without the written consent of the other party, to be given or withheld in the sole discretion of the other party. Notwithstanding the foregoing, for the purposes of this Agreement, Personnel shall not include accountants, attorneys, or other independent contractors that provide third-party services to a Party.
Client and Primitive mutually agree that for every such violation of this provision, the violating party will pay the other party twenty-five thousand dollars ($25,000.00) as liquidated damages which do not constitute penalties. The parties further acknowledge that (i) because of the investment in training, developing, educating, and obtaining certifications for Personnel, the amount of loss or damages likely to be incurred by a violation is incapable or is difficult to precisely estimate, (ii) the amounts above bear a reasonable relationship to and are not plainly or grossly disproportionate to, the probable loss likely to be incurred in connection with any violation, (iii) one of the reasons for the Client and Primitive reaching an agreement as to such amounts was the uncertainty of actual damages, and (iv) the Client and Primitive are sophisticated business parties and have negotiated this Agreement at arm's length.
4. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
Each party acknowledges that the other may have certain confidential or proprietary information, know-how, trade secrets, processes, content, designs, marketing/business plans, formulas, software, product plans, services, and similar items that are vital to their respective businesses. Any such information shall be treated as strictly confidential, whether or not it is marked as such, and neither party shall disclose or use such information for its own benefit or the benefit of a third party without the express written consent of the other party to this Agreement unless disclosure is necessary to perform a party’s obligations under this Agreement.
Client represents and warrants that any intellectual property Client provides does not violate the intellectual property rights of any third party. Further, Primitive retains all the rights, title, and interest to all “Intellectual Property” including, but are not limited to documents, constructs, methodologies, strategies, plans, investigations, video footage, text, graphics, audio, illustrations, designs, and any other materials, it uses or may use to develop or perform the Services unless Primitive expressly grants permission in writing for any use by you. Client agrees not to remove, obscure, or in any way attempt to alter any proprietary marks included in the Services. In accordance with the terms of this Agreement, the Services provided are for the sole use of Client and shall not be used by any affiliate or third-party.
Client and Primitive shall each indemnify, defend, and hold harmless the other Party and its affiliates and their officers, directors, shareholders, employees, and agents from and against losses, liabilities, costs, and expenses (including attorneys’ fees and costs) arising from any breach of any representation, warranty, covenant, or agreement contained herein or performance of Services.
As-Is. Services included in the Proposal and any other services performed by Primitive are provided as-is with no warranties.
Nondisclosure. Neither party, without the, expressed written consent of the other party, shall disclose the terms and conditions of this Agreement or any agreement by and between the parties hereto to a third party other than the employees, lenders, counsel, or accountants of a Party, its affiliates, or prospective purchasers.
Assignment. Client may not assign this agreement without Primitive’s prior written consent. However, the Agreement will insure to the benefit of and be binding on Primitive’s successors and assigns.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Choice of Law/and Venue. This Agreement will be governed and construed under the laws of the State of Texas, without reference to its conflict of laws provisions. The parties further agree that any dispute arising under or related to this Agreement shall be heard in the courts in Lubbock County, Texas. The prevailing party in any legal proceeding brought to enforce the terms of this Agreement may be entitled to recover its court costs and reasonable attorney’s fees incurred in said proceeding.
Final Agreement. This Agreement and related exhibits and statements of work, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Amendment. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance.
Notice. Notice shall be made at the client address or at the email client email.
Notice shall be made to Primitive at the address 905 Ave. K, Lubbock, TX 79401 or at the email firstname.lastname@example.org. Notice shall be effective upon deposit of mail in the regular mail or certified mail or when such electronic mail is sent.
Counterparts. This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument.