Terms and Conditions - Pivot Creative | Branding, Digital & Creative Agency

Pivot Creative Management and the Customer desire to establish the terms and conditions under which Pivot Creative Management will provide services to the Customer (as further defined below, the “Services”). In consideration of the mutual covenants and promises contained herein and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the Parties agree as follows:

Services
1. Delivery. During the Term (as defined in the signed proposal), Pivot Creative Management shall provide the services as detailed in a schedule executed from time to time by the Parties (the “Services”).
2. Schedule. The initial schedule of services is attached hereto as Exhibit A, and each subsequent schedule will be numbered consecutively and will be incorporated by reference into this Agreement (each, a “Schedule”). Each Schedule will describe the scope of the Services, including
  1. A description of the services and any specifications
  2. Campaign information
  3. Payment terms
  4. The effective start and end dates of each schedule
  5. Point of contact for each Party
  6. Such other terms as agreed to by the Parties
3. Technical Support. Pivot Creative Management shall provide website maintenance and technical support via digital platforms, such as email, phone, and conference calling.
Customer Obligations
1. Use of the Services. Customer shall access and use the Services strictly in accordance with the guidelines provided by Pivot Creative Management.
2. Password; Security. Customer solely is responsible for keeping confidential all login credentials and passwords assigned to Customer to access the Services. The customer agrees it shall employ best practices to safeguard its login information from loss, theft, or misuse. The customer solely is responsible for any unauthorized use of it’s account.
3. Technical Contact. Customer shall designate a member of its staff to serve as the technical contact to Pivot Creative Management, with responsibility for addressing all technical matters under this Agreement, as needed.
4. Infrastructure. Customer shall be responsible for providing and maintaining their own workstations, networks, and Internet connections necessary to access and use the Services provided by Pivot Creative Management.
Pricing; Invoices; Payment Terms
1. Fees.
  1. The Customer and Pivot Creative Management have agreed that the Customer’s obligation to pay Pivot Creative Management for its Services will be as set forth in the applicable Schedule (the “Fees”).
  2. The Customer and Pivot Creative Management have agreed that this compensation obligation shall be set forth in the applicable Schedule of Services.

Notwithstanding the foregoing, the Customer shall reimburse Pivot Creative Management for extraordinary actual out-of-pocket expenses that are incurred by Pivot Creative Management on behalf of the Customer. Pivot Creative Management agrees to obtain prior approval from Customer before incurring any individual expense in excess of $100.00 and understands that Customer shall not be required to reimburse Pivot Creative Management for unapproved expenses in excess of this amount. Pivot Creative Management also understands and agrees that ordinary business expenses, such as travel expenses, postage, and the like, shall be borne by Pivot Creative Management. Expenses shall be reimbursed within thirty (30) days after receipt of Pivot Creative Management invoice and Pivot Creative Management agrees to provide Customer with access to such receipts, ledgers, and other records as may be reasonably appropriate for the Customer or its accountants to verify the amount and nature of any expenses for which Pivot Creative Management seeks reimbursement.

- Invoice. At the beginning of each calendar month, Pivot Creative Management will invoice Customer for the Fees due for the upcoming month’s activity. Fees shall be calculated and finally settled solely based on records maintained by Pivot Creative Management. Invoices are payable in full in U.S. dollars, upon receipt of the invoice.
- Taxes
  - All amounts payable by Customer under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind
  - If a Party is required to collect, or pays on the other Party’s behalf, any taxes or duties for which the other Party is responsible, the other Party will pay or reimburse such Party, as the case may be, for all such amounts.
- Late Payments. Any undisputed invoice or undisputed portion of an invoice that is not paid within thirty (30) days after the date of the invoice shall be deemed to be a late payment. Customer shall pay Pivot-Creative Management interest thereon (from the due date to the date of payment) at a per annum rate equal to 12%. Notwithstanding any other provision hereof, such interest rate shall be no greater than permitted under applicable provisions of New Hampshire law.
- Dispute. Customer is deemed to have waived any objection to an invoice unless Customer notifies Pivot Creative Management in writing of an objection to an invoice within ten (10) business days following Customer’s receipt of the invoice at issue. Customer remains obligated to pay all undisputed amounts when due.
- Non-Payment. If Customer fails to pay undisputed fees invoiced by Pivot Creative Management within two (2) months following the payment due date, Pivot Creative Management shall have the option, without prior notice or warning:
  1. Terminate this Agreement; or
  2. Suspend performance of the Services.

In the case of (1) and (2), Pivot Creative Management will not restore service until Customer pays all overdue amounts, and the costs, if any, incurred by Pivot Creative Management in collecting the undisputed past due fees (e.g., attorney’s fees and collection costs).

Proprietary Rights
1. Work for Hire. It is understood and agreed that the works being developed by Pivot Creative Management and described on a Schedule are for the sole and exclusive use of the Customer, which shall be deemed to be the sole and exclusive owner of all right, title and interest therein including all copyright and proprietary rights relating thereto, except to any Pivot Tools. All work performed by Pivot Creative Management and generated in connection therewith is and shall be considered as Works Made for Hire, as defined under the U.S. Laws, and, as such, shall be owned by and for the benefit of the Customer.
2. Use of Works and Derivative Works. The Customer has the right to use or not use Pivot Creative Management’s work and to use, reproduce, re-use, alter, modify, edit or change any works created by Pivot Creative Management as it sees fit and for any purpose, and to have others do the same on behalf of the Customer.
3. Assignment of Rights. Pivot Creative Management will sign, upon request, any documents needed to confirm that any specific work is a work made for hire and/or to effectuate the assignment of its rights to Customer. In the event that it should be determined that any work does not qualify as a work made for hire, Pivot Creative Management will and hereby does assign to Customer all right, title and interest which it may possess in such work, including, but not limited to all copyright and proprietary rights relating thereto. Upon request, Pivot Creative Management will take such steps as are necessary to enable the Customer to record such assignment at the Customer’s expense.
4. Pivot Creative Management Ownership Rights. Notwithstanding the foregoing Pivot Creative Management shall retain all rights in and to all preexisting works, other materials, and know how used to produce its work product for the Customer (“Pivot Tools”), including without limitation:
  1. Its applications;
  2. Its documents, information, methodology and know-how related to the development of its Services, including without limitation, it’s technology, software, algorithms, code, organization and structure of its data and databases used to provide the Services.
5. License. To the extent that any work created by Pivot Creative Management incorporates any Pivot Tools, Pivot Creative Management grants and agrees to grant to Customer a perpetual royalty-free non-exclusive license to use, reproduce, re-use, alter, modify, edit, or change any Pivot Tools, and to have others do the same on behalf of the Customer. Customer has no rights in or to the Pivot Tools beyond the limited rights of access and use contemplated by this Agreement.
6. Customer Ownership Rights. Customer retains all rights in and to any raw data or other information or materials it provides to Pivot Creative Management (“Customer Data”) and its own technologies, know-how, content and media assets.
Confidentiality
1. 1. Duty. Each party will:
    1. Protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and
    2. Not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential.
  2. Use of Confidential Information. Each Party (and any affiliates’ employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates’ employees and agents in violation of this Section.
  3. Definition. “Confidential Information” means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or a reasonable person would consider confidential under the circumstances. The Services, including without limitation its applications, databases, organization, design and structure of its databases and reports, shall be Pivot Creative Management’s Confidential Information.
  4. Exclusions. Confidential Information does not include information that:
    1. Is generally disclosed to third parties without restriction on such third parties;
    2. Is or becomes known to the general public under circumstances involving no breach by the recipient or others of the terms of this Section or any obligation of confidentiality;
    3. Is independently developed by the recipient without knowledge of the discloser’s Confidential Information; or
    4. Is approved for release by written authorization of an officer of the discloser.
  5. Required Disclosure. Each Party may disclose the other Party’s Confidential Information when required by law but only after it, if legally permissible:
    1. Uses commercially reasonable efforts to notify the other Party; and
    2. Gives the other Party the chance to challenge the disclosure.
Reports
1. Reports. Pivot Creative Management will provide standard reports that Pivot Creative Management and its vendors make available for the Services. Customer understands and agrees that certain functionality will be provided by Pivot Creative Management’s vendors, and the use of such vendor services may be subject to additional terms.
License
1. License by Customer. Customer grants Pivot Creative Management a non-exclusive worldwide license to use Customer Data, and any other data and information provided by Customer:
  1. To fulfill Pivot Creative Management’s obligations under this Agreement;
  2. To compile aggregate statistics for its own business purposes, such as, improving its Services, assessing trends in online advertising and audience demographics; and
  3. For research, white papers, presentations and for marketing purposes, provided that such data may be used in aggregate form only and shall not reveal the identity of any individual or Customer as a source of such data.
Term; Termination
1. Term. This Agreement shall commence on the Effective Date and shall terminate on the one (1) year anniversary thereof (“Initial Term”) and shall renew automatically for successive one (1) year periods (each, a “Renewal Term”) (together with the Initial Term, the “Term”) unless either party notifies the other in writing at least sixty (60) days before the end of the Initial Term or any Renewal Term that it wishes to terminate the Agreement. Such notice may be provided by email. Each Schedule of Services shall have a term as stated therein.
2. Termination for Cause. In addition to the other remedies provided in this Agreement, this Agreement shall terminate if a Party is in material breach and fails to cure within thirty (30) days following receipt of written notice from the non-breaching party. The breaching party shall only have one (1) opportunity to cure following receipt of written notice and the non-breaching party may immediately terminate this agreement upon the occurrence of a subsequent breach. Should Customer terminate for a breach by Pivot Creative Management, all further payment obligations of the Customer shall immediately cease.
3. Early Termination. Either party may terminate this Agreement prior to the end of the then current Initial Term or Renewal Term upon 30 days written notice to the other Party. If Customer chooses to terminate this Agreement in accordance with this Section, Customer will be charged an early termination fee in the amount equivalent to three of the monthly installments as detailed Exhibit A.
4. Duties upon Termination. On the date of expiration or termination of this Agreement, (a) Pivot Creative Management shall promptly provide Customer with all work product created by Pivot Creative Management in connection with the Services for Customer, including all computer code, databases, website access codes, images, documents, reports, and the like, as well as all materials provided by the Customer to Pivot Creative Management; (b) Customer shall promptly pay all amounts due and still owing to Pivot Creative Management upon receipt of the work product set forth above.
5. Post Termination Services. Notwithstanding anything in this Agreement to the contrary, and regardless of termination of this Agreement by either party for any reason, Pivot Creative Management agrees to make its Services available to complete or provide follow-up support for any work or projects to which Pivot Creative Management at any time materially contributed pursuant to this Agreement for up to 30 days after the effective date of the termination of this Agreement. Such services shall be made available at Pivot Creative Management’s then-current labor rates and be documented in a Schedule signed by the Parties.
Representations and Warranties.
1. Mutual Warranties. Each party represents and warrants to the other that
  1. It has the full power and authority to enter into this Agreement;
  2. Its execution, delivery, and performance of this Agreement will not violate, conflict with, or result in a material default under any other contract or agreement to which such party is a party, or by which it is bound;
  3. It shall comply with all applicable laws and regulations;
  4. It shall not violate the rights of others, including without limitations, the privacy, copyright, trademark, patent and intellectual property rights of another person or entity;
  5. It will use reasonable endeavors to confirm the requirements, terms and policies of any advertising networks, search engines, directories and similar platform in which Pivot Creative Management and its vendors will deploy the Services.
2. Pivot Creative Management Warranties. Pivot Creative Management represents and warrants to Customer that:
  1. All work shall be performed in a workmanlike and professional manner by staff having experience and qualifications commensurate with the work to be performed;
  2. All work shall be performed in accordance with the specifications and within the time frames agreed upon by Pivot Creative Management and the Customer, time being of the essence;
  3. Any employee, agent or independent contractor retained by Pivot Creative Management to perform work for the Customer either has an obligation to assign all intellectual property rights to Pivot Creative Management or will execute an agreement that protects copy of this agreement before performing any work for the Customer; and
  4. Any materials or other works that Pivot Creative Management uses in connection with its performance of Services for the Customer that are not provided by the Customer are legally owned or licensed to Pivot Creative Management and Customer may use the work product created by Pivot Creative Management without infringing the rights of third parties.
3. Customer Warranty. Customer warrants that everything it provides Pivot Creative Management to employ in a campaign associated with the Services is legally owned or licensed to Customer and that Pivot Creative Management and its vendors are authorized to use and process such information and data for the delivery of the Services.
4. DISCLAIMER. EXCEPT AS PROVIDED ABOVE, EACH PARTY AND THEIR RESPECTIVE VENDORS AND DISTRIBUTORS MAKE NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Additional Disclaimers. Customer acknowledges that nothing in this Agreement constitutes an express or implied warranty:
  1. That the Services will be uninterrupted or error free;
  2. Concerning the results or success that may be obtained from the use of the Services;
  3. Concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of Customer using the Services (including, for the avoidance of doubt, any increase in revenue, profit or goodwill in connection with any products and/or services that Customer may offer for supply, or supply via its web site, the Internet or otherwise;
  4. That the provision of the Services will result in the ranking of Customer’s website improving;
  5. That the provision of the Services will result in an increased amount of traffic or users to Customer’s website;
  6. Concerning any market conditions (whether favorable or not) that may be in existence at the Effective Date will continue;
  7. That the provision of the Services generally will not be subject to, or result in, either errors and/or delays;
  8. That any advertising network, search engine, directory or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time; or
  9. How network policies and changes to such policies will impact the delivery and success of the Services.
Indemnification
1. Claims. Each Party agrees to indemnify, defend and hold harmless each other and their officers, directors, members, employees, agents, vendors and distributors from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with:
  1. The breach of any representation, warranty or obligation under this Agreement,
  2. The other Party’s failure to comply with any applicable law or regulation; or
  3. Injury or damages caused by the other Party’s gross negligence or willful misconduct.
2. Indemnified Party’s Obligations. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that:
  1. Any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed; and
  2. The other Party may join in the defense with its own counsel at its own expense.
3. Intellectual Property Infringement. If Pivot Creative Management reasonably believes the Services infringe a third party’s intellectual property rights, then, in addition to its indemnity obligations, Pivot Creative Management will:
  1. Obtain the right for Customer to continue using the Services;
  2. Provide a non-infringing functionally equivalent replacement; or
  3. Modify the Services so that they no longer infringe.
4. Exception. Pivot Creative Management has no obligation to provide any remedies under this Section 10 if an infringement claim is based solely on the Customer’s or its end users:
  1. Use of any Services after Pivot Creative Management notifies Customer to discontinue its use;
  2. Combining the Services with a non-Pivot Creative Management product, data or business process;
  3. Altering the Services without Pivot Creative Management’s authorization; or
  4. Redistribution of the Services to a third party who is not authorized to use the Services under this Agreement.
5. Additional Indemnity. In addition, Customer agrees to indemnify and hold Pivot Creative Management, its officers, directors, members, employees, agents, vendors and distributors harmless from any and all claims brought by any third party based upon Customer’s products/services, materials supplied by Customer, and defective products sold by Customer via a campaign. Customer agrees to indemnify Pivot Creative Management from responsibility for problems/disruptions caused by third-party services that Customer may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing, and other services that relate to Customer promotions, content, products or services.
Limitation of Liability
1. EXCEPT FOR (I) A PARTY’S DUTY TO INDEMNITY THE OTHER, (II) ACTS OF FRAUD GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, OR (III) A BREACH OF CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 5, IN NO EVENT WILL EITHER PARTY, ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, AGENTS, REPRESENTATIVES, VENDORS OR DISTRIBUTORS HAVE LIABILITY THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES.
Restrictions

1. 1. Each Party shall not with knowledge (a) transmit viruses, including, without limitation, codes, commands, or instructions designed to access, alter, delete, damage or disable the other Party’s computer information system and networks; (b) engage in unlawful or deceptive conduct (c) interfere with each other Party’s proper functioning of the other Party’s computer network and systems; or (d) access the other Party’s computer network, systems and databases without permission, including without limitation, using password spoofing.

General

1. Publicity. If desired, the Parties may make commercially reasonable efforts to issue a mutually agreeable press release concerning this relationship shortly after the execution of this Agreement. Each Party shall have the right to use the other Party’s name and logos in general marketing materials related to the Services.
2. Dispute Resolution. The Parties agree to resolve any disputes between them whenever possible by mutual and voluntary settlement rather than through any binding dispute resolution process.
3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire. The Customer and Pivot Creative Management each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement.
4. Venue. For any dispute arising out of or relating to this Agreement, the Parties consent to personal jurisdiction in, and the exclusive venue of, the courts in Merrimack county, New Hampshire, United States of America.
5. Order of Precedence. In the event of any inconsistency or conflict between this Agreement and any Schedule to this Agreement, the inconsistency or conflict shall be resolved by giving precedence to the Schedule.
6. Assignment. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Unless provided otherwise in this Agreement, neither Party may assign any of its rights or delegate any of its obligations under this Agreement without the other Party’s written consent, which consent will not be unreasonably withheld; provided, however, that either Party upon notice to the other may assign its obligations under this Agreement in the event of a merger or acquisition of the Party or an acquisition of substantially all of such Party’s assets.
7. Amendment. The Parties may modify this Agreement only in a writing signed by both Parties.
8. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
9. Non-Solicitation. During the Term and for a period of one year thereafter, each Party shall not in any capacity, directly or indirectly solicit the employment or hire (for itself or any of its affiliates) any present employee or independent contractor of either Party or someone who was a former employee or independent contractor within the twelve (12) months of the date of the solicitation without the prior written consent of the other Party. General solicitations, such as mass-market advertising not specifically directed to any person, are exempt.
10. Notices. All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement and be sent to the addresses provided in the contract. Such writing may be provided in email form.
11. Independent Entities. The Parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture relationship.
12. Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.
13. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, a natural disaster, an act of war or terrorism, riot, labor condition, governmental action, and internet disturbance) that was beyond the party’s reasonable control.
14. Complete Understanding. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject, other than any project proposal or other materials intended to be incorporated as a schedule hereto.
15. Survival. The following sections will survive expiration or termination of this Agreement: Sections 4, 5, and 9 to 13.
16. Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
17. Electronic Transactions. The parties may present and sign this Agreement electronically, which shall have the same force and effect as an agreement signed in writing.
18. Additional Remedies. Each party acknowledges that a party may suffer irreparable harm should a party fail to abide by the terms of this agreement, such as each party’s confidentiality obligations or proprietary rights. Therefore, each party agrees that a party may, in addition to recovering legal damages, proceed in equity to obtain injunctive relief to enjoin violation of this agreement.