BCV TERMS AND CONDITIONS
SOCIAL MEDIA MANAGEMENT
BCV SOCIAL LLC d/b/a BCV (“BCV”) and Client agree that the following terms and conditions will govern the development by BCV of a social media presence for Client and, if applicable, its various Outlets, on the internet through the use of one or more social media sites or mobile apps that facilitate social networking, interaction and content-sharing among users, which may include Facebook, Twitter, Instagram and Pinterest (any such sites or mobile apps, “Social Networks”).
1. GENERAL.
BCV and Client agree that Client’s retention of BCV with respect to the provision of social media management services as described further in Section 2 shall be subject to these terms and conditions, and these terms and conditions, together with any other documents entered into hereunder (including the Scope of Services Schedule(s)) (collectively, the “Agreement”) shall be the exclusive terms with respect thereto, and that the terms and conditions contained in the Agreement represent the final and complete contract between the parties the terms of which cannot be modified by either party except by an express written agreement signed by both parties.
2. BCV SERVICES.
a. BCV shall register Client, or shall be provided with Client’s established administrative privileges or credentials, for a website/web page or account on one or more Social Networks (each, a “Client Site”) and shall use such Client Site to promote Client’s products and services on each such Social Networks. The development of the Client Site and related activities (such as the creation and management of content associated with Client’s products and services on Social Networks) are referred to herein as the “Development Services.”
b. In addition to the Development Services, BCV shall provide Secondary Services to Client. “Secondary Services” means those services intended to create opportunities for Client, or for BCV on behalf of Client, to interact with users of the Social Networks based on those users’ preferences and posted content, and other services related thereto.
c. The Development Services and the Secondary Services are referred to collectively in these terms and conditions as the “Services.” The specific Services to be performed pursuant to this Agreement shall be set forth in one or more Scope of Services schedules, which will reference this Agreement and be signed by the parties.
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d. BCV shall not be obligated to provide any services other than the Services set forth in the Scope of Services unless expressly agreed to by BCV and the Client in a separate written agreement.
3. FEES AND EXPENSES; INVOICING; LATE PAYMENT; TAXES.
a. Client shall pay BCV for the Services at the rates set forth and according to the payment terms set forth in one or more schedules, which will reference this Agreement and be signed by the parties (the “Service Fees,” which, for the avoidance of doubt, does not include the Advertising Spend or Expenses, as those terms are defined below). However, notwithstanding the foregoing, and subject to Section 12.c, BCV may modify the Service Fees for any Services at any time on at least thirty (30) days prior written notice of such modification. The Service Fees shall be deemed earned on a monthly basis by BCV in the event of termination of this Agreement pursuant to Section 12.b. and if such termination is by Client thereunder, any unearned amount shall be promptly be repaid to Client.
b. In addition to the Services Fees, Client shall pay BCV (i) on an agreed basis as defined in this Agreement, the advertising spend agreed to in the Scope of Services or otherwise in writing between the parties ("Advertising Spend") and (ii) for, any authorized out-of-pocket expenses incurred by BCV in connection with the provision of the Services (the "Expenses").
c. Client shall pay to BCV all Service Fees and Expenses due under this Agreement within fourteen (14) days of the date of the applicable invoice. Any failure by Client to pay any amounts under this Agreement in full when due and payable shall result in late charges of the lesser of one and one-half percent (1.5%) per month or the maximum amount allowable under applicable law and be deemed a material breach of this Agreement, justifying an immediate suspension of the performance of BCV’s obligations under this Agreement, and will be sufficient cause for termination of this Agreement by BCV in accordance with the provisions of Section 12. Any suspension of Services pursuant to this Section 3c shall not relieve Client from paying any past due Service Fees and/or Expenses plus interest and, in the event of any collection enforcement, any costs associated with such collection, including without limitation legal costs, attorneys’ fees and expenses, court costs and/or collection agency fees.
4. CLIENT CONTENT.
a. “Client Content” shall mean any and all materials, information, and other content provided by or on behalf of Client to BCV for incorporation into any Client Site or otherwise for use in connection with BCV’s provision of the Services to Client, including but not limited to any images, photographs, illustrations, graphics, audio clips, video clips, text, hypertext links, descriptive claims and the like, and including but not limited to the Client Name and Trademarks, as hereinafter defined. The “Client Name and Trademarks” shall mean Client’s name and any modifications to or derivations thereof, together with all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, internet domain names, and all translations, adaptations, derivations and combinations thereof.
b. Client shall deliver the Client Content to BCV in an electronic format specified and accessible by BCV (e.g., .txt, .gif), and shall deliver such Client Content to BCV no later than sixty (60) days after the date of this Agreement. To the extent that any Client Content includes any hypertext links to any third party websites, Client shall be solely responsible for obtaining any authorization(s) necessary for such hypertext links.
c. Client assumes sole responsibility for the accuracy of any Client Content provided to BCV. Client represents, warrants and agrees that any Client Content provided to BCV will: (i) not be misleading to the general public or otherwise contain any information that is fraudulent or deceptive or materially false or inaccurate; (ii) not be unlawful, harmful, threatening, malicious, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, sexually explicit, libelous, indecent, intimidating, invasive of another’s privacy, hateful, or sexually, racially, culturally, ethnically or otherwise objectionable; (iii) not impersonate anyone else or falsely represent Client’s affiliation with any person or entity; (iv) not contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (v) consist solely of content that Client has the full and complete right to post and transmit, both legally and contractually; (vi) not knowingly infringe on any patent, trademark, trade secret, copyright or other proprietary, contract, moral, privacy, or other rights of any person or entity; (vii) not promote any illegal activity; and (viii) not intentionally or unintentionally violate any applicable law or regulations or otherwise expose BCV to civil or criminal liability. By providing Client Content to BCV, Client represents that it owns or controls all rights in such Client Content or possesses an appropriate license or permission for its use in connection with the Services. Client is solely responsible for ensuring that Client Content does not, and will not violate any requirements of this Agreement or any rights of any third party. Client acknowledges that, with respect to any Client Content, BCV is acting solely as a channel for distribution and does not undertake any obligation or liability relating to any Client Content. However, BCV reserves the right to refuse to utilize, or to edit or remove from any Client Site, any Client Content in connection with the provision of the Services to the extent that BCV believes, in its reasonable discretion, that such Client Content does not conform to the requirements of this Agreement.
5. PROPRIETARY RIGHTS.
a. Client shall remain the sole and exclusive owner of the Client Content, including, without limitation, all copyrights, trademarks, service marks, patents, trade secrets, and other proprietary rights embodied therein, including adaptations, modifications and derivative works. In addition, Client shall own all right, title and interest (including all intellectual property rights) in and to the Work Made for Hire Content. The term “Work Made For Hire Content” shall mean video compositions, photographs and graphics that BCV creates specifically for and delivers to Client pursuant to this Agreement and any Scope of Services, (ii) all adaptations, modifications and derivative works of the Client Content, (iii) any other materials that are specifically stated in the Scope of Services (or amendment or addendum thereto) as Work Made For Hire Content, and (iv) “Client Site Reports” which shall mean any written or software-generated report prepared by or on behalf of Client setting forth Client Site statistics and analytics. Work Made For Hire Content shall be deemed to be “work made for hire,” as defined in 17 U.S.C. § 101. To the extent that any Work Made For Hire Content does not qualify under law as a "work made for hire," BCV, on behalf of itself and its agents and employees, hereby irrevocably and absolutely assigns to Client all of its right, title and interest relating to the same throughout the universe in perpetuity in all media now known or hereafter developed, including but not limited to all copyrights, design rights and other intellectual property rights relating to same. BCV agrees to take all steps reasonably necessary to effectuate and formalize this assignment, including executing (or causing its employees and/or agents to execute) all required documentation.
b. BCV shall be and remain the sole and exclusive owner of all materials or technology, including, without limitation, all copyrights, trademarks, service marks, inventions, patents, trade secrets and other proprietary rights embodied therein, (i) which it created prior to its use in connection with the Services, (ii) created by or on behalf of BCV in connection with the Services, including any computer software (whether in object code or source code form), applets, script, programming code, data, information or HTML script, reusable objects, routines and templates (except to the extent constituting Work Made For Hire Content and for any elements thereof which are Client Content or Client Confidential Information) or (iii) which constitute processes tools, drafts, work in process, preliminary materials, alternate takes or versions for, or developed or made in connection with, creating any Work Made For Hire (but not the Work Made For Hire itself) (collectively, “BCV Materials”). For the avoidance of doubt, third party materials, applications or information used by BCV in connection with the Services ("Third Party Materials") shall not be considered BCV Materials hereunder.
c. Notwithstanding anything to the contrary herein, all proprietary rights of Client or BCV (as applicable) in any Client Content, Work Made For Hire Content or BCV Materials are subject to the rights of theapplicable Social Networks that arise by virtue of publication of the same on any Social Networks.
d. Upon termination or expiration of the Agreement and/or at the earlier request of Client, BCV shall promptly provide Client with all current administrative log-in and password credentials for each Client Site. BCV shall not share said log-in, password or other credentials to any other party without Client's prior written authorization.
6. LICENSE GRANTS.
a. Client hereby grants to BCV a non-exclusive, worldwide, royalty-free license for the Term (as hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, reproduce, create derivative works from, distribute, transmit and display the Client Content (other than the Client Name and Trademarks) and the Works Made For Hire Content as necessary to render the Services to Client under this Agreement, in a manner consistent with the Scope of Services and provided it would not result in the public disclosure of any Client Confidential Information unless authorized by Client.
b. Client hereby grants to BCV a non-exclusive, worldwide, royalty-free license for the Term to exhibit, publish, reproduce, transmit and display the Client Name and Trademarks as necessary to render the Services to Client under this Agreement, and in connection with a listing of BCV customers on BCV’s website and marketing materials, all in accordance with any written trademark usage guidelines provided to BCV by Client.
c. Client acknowledges and agrees that Client shall have no rights with respect to the BCV Materials unless and until such BCV Materials are subsequently licensed to Client as provided in Section 12.e.
d. Nothing in this Agreement or otherwise shall restrict BCV from (i) collecting, retaining, using, aggregating and distributing Client Site online conversations or (ii) developing, using and distributing trend and experiential information and statistics and analytics derived or observed from materials publicly available on the Client Sites, provided that, as to both (i) and (ii), BCV will not distribute an information which is specifically identifiable to Client.
e. If BCV shall desire to use any other types of Client Content or Confidential Information not expressly licensed to BCV herein, BCV shall request such use in writing describing generally the type of use sought, which shall only include aggregation of such information in a manner which shall not include any identification of Client. Provided that BCV's use complies with such limitations, Client shall not unreasonably withhold its consent. Any such requests by BCV shall be sent to Client in writing with specificity as to the Client Content or Confidential Information proposed to be used, including nature, purpose and duration of the proposed use.
7. LIMITED AGENCY.
Client agrees and acknowledges that the performance of certain of the Services will involve direct contact between BCV (or its employees, consultants, independent contractors or other representatives, referred to collectively as “BCV’s Representatives”) and Client’s customers, Client’s potential customers, and other third parties. Client hereby grants to BCV and BCV’s Representatives the right to hold itself and themselves out as a representative of Client and to do so in accordance with any written Client policies and guidelines provided to BCV and otherwise consistent with the Scope of Services, and to contact persons on Client’s behalf, provided that such grant shall be limited to actions by BCV and BCV’s Representatives in connection with the performance of the Services pursuant to this Agreement. Client acknowledges and agrees that neither BCV nor any of BCV’s Representatives are general agents of Client, and shall not have the power to bind Client in any capacity or circumstance.
8. CONFIDENTIALITY.
Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed by such party (the “providing party”) to the other party (the “receiving party:), including, without limitation, software (in both source code and object code form), processes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving party can demonstrate: (i) is, as of the time of its disclosure, or thereafter becomes, part of the public domain either through a source other than the receiving party or as a result of BCV disclosing such information on a Social Networks pursuant to its proper performance of the Services; (ii) was known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; or (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party, subject in all cases to matters which a party is advised is required to be disclosed by law or regulation. Each party, as a receiving party agrees that, except as permitted by this Agreement, such party shall not make any disclosure of the Confidential Information other than to its employees, consultants, independent contractors or other representatives (collectively, Representatives") who have a need to know such information in connection with this Agreement, which Representatives shall be notified of the confidentiality obligations with respect to the Confidential Information. The confidentiality obligations of each party and their respective Representatives shall survive the expiration or termination of this Agreement.
9. REPRESENTATIONS AND WARRANTIES.
a. Each party represents and warrants to the other that: (i) it has the power and authority to enterinto and perform its obligations under this Agreement and (ii) neither the execution and delivery of this Agreement by it nor its performance hereof currently do not and will not at any point during the Term, conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which it is a party or by which it is bound, or require consent of any third party which has not been received.
b. The foregoing warranties are in lieu of any other warranties and each party hereby disclaims all other warranties, express or implied, including, without limitation, implied warranties of MERCHANTABILITY and FITNESS FOR A PARTICULAR PURPOSE.
10. INDEMNIFICATION.
a. Client agrees to indemnify, defend, and hold harmless BCV, its directors, officers, employees, agents and any other of BCV’s Representatives with respect to any third party claim, demand or cause of action (“Claim”), the damages or liability payable to such third party resulting from such Claim, and, subject to Section 10.c. below, attorneys’ fees in defending such Claim, all to the extent that such Claim: (i) arises from or relates in any way to the Client Content or BCV’s provision of the Services, except to the extent such Claim results from the gross negligence or willful misconduct of BCV; (ii) relates to any inaccuracy in or breach of any of Client’s representations or warranties in Section 9.a. hereof; or (iii) arises out of allegations that any of the Client Content to be provided by Client hereunder or, except to the extent covered by BCV’s indemnification of Client in Section 10.b below, other material on the Client Sites, infringes or violates any rights of third parties, including, without limitation, contract rights, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
b. BCV agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees, agents and any other of Representatives, with respect to any third party claim, demand or cause of action (“Claim”), the damages or liability payable to such third party resulting from such Claim, and, subject to Section 10.c. below attorneys’ fees in defending such Claim, all to the extent that such Claim (i) arises out of allegations that any of the BCV Material (not including any Client Content or Third Party Materials included therein) infringes or violates any rights of third parties, including, without limitation, contract rights, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses or (ii) relates to any inaccuracy in or breach of any of BCV’s representations or warranties in Section 9.a. hereof.
c. The indemnification provided for herein shall be subject to the following terms and conditions: (i) the party claiming indemnification (“Indemnified Party”) must notify the other party (“Indemnifying Party”) promptly in writing of any notice of the Claim subject to indemnification; (ii) the Indemnifying Party shall have sole control over such defense and all negotiations for the settlement and compromise of such Claim; (iii) for so long as the Indemnifying Party is diligently conducting such defense, it shall not be liable for any attorney’s fees of the Indemnified Party; and (iv) the Indemnified Party shall cooperate with the Indemnifying Party in a defense and settlement of any such Claim provided that, except if the last sentence of this sub-Section is applicable, the Indemnifying Party shall not be liable hereunder for any settlement or compromise negotiated by the Indemnified Party unless the Indemnifying Party agrees in writing to be so bound. If the Indemnified Party provides notice of a claim in accordance with (i) and is not notified within fifteen (15) days thereafter that the Indemnifying Party intends to defend the Claim, the Indemnified Party shall be entitled to defend such Claim, and settle or compromise such Claim, subject to the indemnification provided for herein.
11. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOSS OF EARNINGS, PROFITS OR GOODWILL, OR FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF BCV TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO FIFTY PERCENT (50%) OF THE SERVICE FEES ACTUALLY PAID TO BCV BY CLIENT UNDER THIS AGREEMENT OVER THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CAUSE OF ACTION (OR SUCH LESSER TIME AS THIS AGREEMENT HAS BEEN IN EFFECT). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. CLIENT ACKNOWLEDGES THAT WITHOUT THESE LIMITATIONS IT WOULD PAY A HIGHER FEE FOR THE SERVICES TO BE PROVIDED HEREUNDER, AND ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF OTHER REMEDIES AVAILABLE TO CLIENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. TERM AND TERMINATION.
a. This Agreement shall remain in effect for a period of twelve (12) months from the date of execution of this Agreement or any other date specifically provided in the schedule (“Term”) unless earlier terminated as permitted below in this Section 12. Thereafter, this Agreement shall renew automatically for additional twelve (12) month periods (each renewal shall be considered as “Renewal Term”). Either party shall provide the other party with notice of its intention not to renew at least thirty (30) days prior to the end of the then current Term.
b. Either Party may terminate this Agreement during the Term upon thirty (30) days prior written notice to the other party if the other party materially breaches any of its representations, warranties, or agreements under this Agreement, including breach of BCV’s Services (Scope of Work and SLAs, if any) and such breach is not cured with fifteen (15) working days from receipt of written notice specifying such breach; provided however, that such cure period shall not apply to any failure of Client to comply with its payment obligations set forth herein.
c. Upon any termination or expiration of the Term, Client shall immediately pay to BCV all unpaid and outstanding Service Fees, Expenses and Advertising Spend through the effective date of such termination or expiration.
d. Upon any termination or expiration of this Agreement (i) BCV shall either destroy or return to Client all Client Confidential Information in its possession, (ii) Client shall either destroy or return to BCV all BCV Confidential Information, and (iii) BCV will provide information to Client to enable them to contact any third party licensor of Third Party Materials used in connection with the Client Site(s), but such rights to use Third Party Materials shall terminate on termination or expiration of this Agreement. Upon expiration of this Agreement at the end of the Term, Client and BCV may negotiate mutually in good faith, a non-exclusive licensing agreement pursuant to which Client shall retain use of certain BCV Materials which were used in connection with the Services in exchange for the payment of a licensing fee to BCV.
13. PERFORMANCE.
BCV shall not be responsible for non-performance or delays occasioned by any cause beyond BCV’s reasonable control, including, but not limited to, labor difficulties, delays of vendors or carriers, fires, governmental actions and material shortages, including, without limitation, any delay, downtime, malfunction or other outages of any Social Networks.
14. SEVERABILITY.
Each condition is a separate covenant and the invalidation of any provision, by a court or otherwise, shall not effect the other terms and conditions in this Agreement.
15. APPLICABLE LAW.
This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions, and Client and BCV agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the state of Illinois and Client and BCV hereby submit to the jurisdiction of such courts.
16. NOTICES.
Any notice provided pursuant to this Agreement shall be in writing and shall be provided by hand delivery (which shall be deemed given upon receipt), U.S. mail (which shall be deemed given three (3) days after deposit in the mails, postage prepaid, certified mail, return receipt requested), email if sent with “read receipt” request (which shall be deemed delivered upon actual receipt, which shall be the date of the read receipt; the parties hereby agreeing that they shall confirm or acknowledge a read receipt when they receive an electronic mailing) or by next day delivery service (which shall be deemed delivered one business day after delivery to the overnight delivery service). All notices shall be delivered to the other party at the address set forth on the signature lines hereto, or at such other address as either party may in the future specify in writing to the other.
17. ATTORNEY’S FEES.
If either party fails to perform according to the terms and conditions herein, the defaulting party shall be liable for all necessary costs, including reasonable attorney or collection agency fees, incurred by the non-defaulting party to enforce this Agreement. Except as otherwise specifically set forth in this Agreement, each party’s rights and remedies under this Agreement are cumulative, and the exercise of any one or more thereof shall not exclude nor preclude the non-defaulting party from exercising any other right or remedy.
18. NON-SOLICITATION.
It is agreed that Client shall not knowingly hire any employee of BCV, or any agency employing a former BCV employee, unless and until twelve (12) months have elapsed since that person’s last date of employment by BCV.
19. ASSIGNMENT.
Neither Party shall assign this Agreement without prior written consent of the other Party.
20. WAIVER.
Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Any waiver in a particular instance shall not constitute a waiver of the same or different rights or breaches in any other instance. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not prejudice such party’s right to take subsequent action.
21. SURVIVAL.
Termination or expiration shall not relieve Client of the obligation to pay any Service Fees, Expenses, Advertising Spend or taxes accrued or due and payable to BCV on or prior to the effective date of termination or expiration and shall not otherwise prejudice the rights of either Party which have arisen on or before the date of termination or expiration. In addition, the following terms of this Agreement shall survive any termination or expiration of this Agreement: Sections 5, 6.d, 8, 10, 11, 12.d, 12.e, 15, 16, 17, 18 and 20.