TERMS AND CONDITIONS

  1. Services. These Terms and Conditions (collectively, the “Terms”) together with any Quote (as defined below), are the master agreement (collectively, the “Agreement”) for the performance of various marketing and other services (collectively, the “Services”) by The Dialog Marketing Group LLC (“Dialog”) all as set forth in one (1) or more Quotes, and the associated creation of deliverables and work product by Dialog (collectively, the “Deliverables”) on behalf of Client and its Affiliates (as defined below) as may be agreed upon by the parties from time to time by completing and executing specific quotes as agreed upon by the parties (each, a “Quote”). If the Services or Deliverables include Digital Development Services (as defined in the Digital Development Additional Terms attached hereto as Schedole 1,), then the terms and conditions set out in Schedole 1 will also apply to the delivery of those specific Services or Deliverables. For purposes of this Agreement, “Affiliate” means any corporation or other entity that directly or through one or more intermediaries, controls, is controlled by, or is under common control with a party. Terms not defined in these Terms shall have the meanings given to those terms in the applicable Quote.
  2. Services Fees, Commissions and Expenses.
    1. Services Fees.
      1. Client shall pay the estimated Services Fees set forth in the applicable Quote.
      2. Any increases to the estimated Services Fees in excess of 10% of the original estimate must be approved by Customer, which approval shall not be unreasonably withheld or delayed. .
    2. Media Buy Commissions. Client understands that for any media bought by Dialog on behalf of Client, Dialog may be paid a commission by the party selling the media or other third party. .
  3. Acceptance of Quotes. Client will request Services and Deliverables by submitting to Dialog, or by requesting Dialog to submit, from time to time during the Term (as defined below), a proposed Quote, which will describe the specific Services and Deliverables requested by Client and will, upon execution by both parties, form a part of this Agreement. A proposed Quote will not be effective unless and until signed by both parties. Nothing contained in this Agreement will be construed to obligate either party to agree to any Quote, and each party will be entitled to accept or reject a proposed Quote in its sole discretion.
  4. Term. The term of this Agreement will commence on the Effective Date (as defined below) and continue, unless terminated earlier in accordance with the Agreement, for a period of twelve (12) months (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for twelve (12) month terms, or for such shorter period as may resolt from termination in accordance with the Agreement, unless either party provides written notice of its intent not to renew at least thirty (30) days before the expiration of the then-current Term (any renewal, together with the Initial Term, the “Term”). For purposes of this Agreement, the “Effective Date” means the earlier of the date when Dialog receives a signed Quote or purchase order from Client for any Services.
  5. Termination.
    1. For Cause. A party may terminate this Agreement, effective immediately, upon prior written notice if the other party:
      1. breaches any of its material obligations under the Agreement and such breach is not cured within thirty (30) days after written notice of the breach is given to the non-breaching party; or
      2. if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property..
    2. Convenience. Either party may terminate this Agreement or an individual Quote for convenience upon at least sixty (60) days’ prior written notice to the other party. Termination of any individual Quote will not cause this Agreement to automatically terminate.
    3. Obligations on Expiration or Termination.
      1. Upon the effective date of expiration or termination of this Agreement under this Section 5, Dialog shall immediately cease the performance of any Services; provided that if the Agreement has not been terminated for cause by Dialog, (i) then Client may request that Dialog complete any Quote or Deliverable that is in progress on the expiration or termination of the Agreement and (ii) Dialog may agree or not agree to complete such Quote or Deliverable in its sole discretion. If Dialog agrees, however, then the Term will be extended for the limited purpose and to the limited extent necessary to permit completion of any such Quote or deliverable, subject to payment of the applicable Service Fees and Expenses during such extended Term
      2. Upon expiration or termination of this Agreement or a Quote for any reason, and upon receipt of all payments due or owing from Client, Dialog will as soon as practical provide to Client all Deliverables in progress under any Quote in whatever their stage of development.
      3. If non-cancellable Client-approved commitments to third parties have been made by Dialog in connection with the Services, Client will assume such commitments prior to the expiration or termination of this Agreement in a form reasonably acceptable to Dialog.
      4. If either party terminates this Agreement or a Quote for any reason, then Client shall pay to Dialog within thirty (30) days, any Services Fees and Expenses due or owing and attributable to Dialog’s development or performance of the Services and Deliverables prior to termination plus any applicable taxes.
    4. Survival. Expiration or termination of this Agreement for any reason will not relieve the parties of any obligation that accrued prior to such date of expiration or termination, and Sections 2, 5.3, 6.7, 9, 12 – 20 and this Section 5.4 shall survive such expiration or termination.
  6. Payment; Suspension and Invoicing
    1. Payment Due Date. The Service Fees and the Expenses shall be due and payable in accordance with applicable Quote.
    2. Credit Card Payments. For credit card payments, Dialog may use a third-party payment processor directed by Dialog (e.g., Stripe, etc.) (any such third-party payment processor, the “Payment Processor”) to process credit card payments. Client agrees to be bound by the applicable agreement of Dialog’s Payment Processor. As a condition of Dialog’s enabling payment processing services through a Payment Processor, Client agrees to provide Dialog accurate and complete information about it, its business, its credit card and such other information required by the Payment Processor, and Client authorizes Dialog to share it and any relevant transaction information related to Client’s use of the payment processing services provided by the Payment Processor
    3. Suspension. If Client fails to pay any Service Fees or other amounts when due, then Dialog may, in addition to any other rights and remedies that it may have, suspend the performance of the Services and provision of the Deliverables upon at least five (5) days’ prior written until all outstanding amounts (including any accrued interest) have been paid in full. Any applicable schedule shall be adjusted to reflect any such suspension.
    4. Invoicing During Negotiation. During any negotiation period (such as during the finalization of a Quote) during which any Services are being performed at Client’s written request, Client hereby authorizes Dialog to invoice at the agreed upon rates (or, alternatively if no discussions regarding rates have occurred, at Dialog’s then-current standard rates) at the end of each month that Services are performed. The parties agree that Dialog is not required to begin Services until a fully executed Quote is received by Dialog.
  7. Purchase of Third-Party Materials and Services. Client is responsible for obtaining any approvals, licenses or other permissions for third party materials and services necessary for the installation, use, development or operation of the Deliverables (including, without limitation, stock photography, music or video, market research, commercially available thirdparty software, hardware or both) (collectively, the “Client Authorized Third Party Materials”). Dialog and Client agree that they are not the owners of such Client Authorized Third Party Materials and have no right to use such Client Authorized Third Party Materials, except as granted by the owners of such Client Authorized Third Party Materials. Notwithstanding anything to the contrary, in the event that Client authorizes Dialog to acquire Client Authorized Third Party Materials (including stock photography, music or video, market research and software) on Client’s behalf in a Quote, Dialog will be acting as, and is hereby authorized to be, Client’s agent for such purchases. Any such Client Authorized Third Party Materials are provided “as is” and Dialog expressly disclaims all warranties, whether express, implied, statutory or otherwise, and shall have no liability, with respect to any such Client Authorized Third Party Materials. All such agreements entered into by Dialog on Client’s behalf shall be entered into as agent for Client, as the disclosed principal and based on sequential liability, and Client will be solely responsible for the review of, and compliance with, the terms and conditions of such agreements. Both parties agree that if Client wants any such agreements to be reviewed by counsel, then Client shall either engage counsel directly, or authorize Dialog in the applicable Quote, to engage experienced counsel as agent for Client, at Client’s sole cost. Dialog shall deliver the related legal review results to Client.
  8. Representations and Warranties.
    1. Dialog represents and warrants to Client that:
      1. Upon delivery of a Deliverable hereunder, and for a period of twenty (20) days after delivery, the tangible media on which such Deliverable is recorded will be free from defects in materials and workmanship under normal use.
      2. Upon delivery of a Deliverable hereunder, and for a period of twenty (20) days thereafter, such Deliverables, excluding Client Materials (as defined below), will substantially perform, in all material respects, in accordance with the specifications set forth in the applicable Quote.
      3. Dialog will perform, in all material respects, all of the Services in accordance with the specifications set out in the applicable Quote and in a proper and professional manner, subject to Client’s compliance with the terms and conditions of this Agreement and the applicable Quote. Dialog shall have no responsibility under the limited warranties in this Section 8.1 to the extent that the failure of the Deliverables or other issues have resulted from, or in connection with, any: (a) Client accident, abuse, misuse or misapplication or malfunction of Client’s equipment, (b) Content (as defined below) or software; (c) Client Materials or software not licensed by Dialog or not approved by Dialog for use in connection with the Deliverables; or (d) Client instructions, directions, or specifications or alterations or modifications to the Deliverables not made by Dialog.
    2. Client represents and warrants to Dialog that:
      1. Client has properly: (i) licensed or will cause to be licensed, on a timely basis, all Client Materials and Content as may be required pursuant to the terms of this Agreement necessary for the purposes of this Agreement or a Quote; and (ii) obtained, or will obtain, on a timely basis, all rights necessary to grant the licenses or sublicenses to Dialog required by these Terms or the applicable Quote, and otherwise has and or will acquire, all rights, on a timely basis, in Intellectual Property (as defined below) necessary for the purposes of this these Terms or the applicable Quote; and,
      2. Client Materials licensed by Client and Content (as defined below) provided by Client do not and will not include any material or content that defames any person or entity or give rise to any claim or suit against Dialog
  9. Limitation of Remedies. Dialog’s entire obligation and liability to Client, and the exclusive remedies of Client, for any breach of the limited warranties set out in Section 8.1 are:
    1. for a breach of the limited warranty under Section 8.1(a), Dialog will replace the defective media not meeting Dialog’s limited warranty with conforming media of equivalent functionality, if such media is returned to Dialog or an authorized Dialog representative; and
    2. for a breach of the limited warranty under Section 8.1(b) or Section 8.1(c), Dialog will, following consultation with Client, either:
      1. repair or replace the Deliverables with substitute Deliverables of equivalent functionality, if returned to Dialog or an authorized Dialog representative; or,
      2. provide a full refund of the Services Fee actually paid by Client for such Deliverable. Any repaired or replacement Deliverable is warranted by Dialog for twenty (20) days from the date of delivery of the repaired or replacement Deliverable
  10. Cooperation. Client acknowledges that the successful and timely provision of the Services and the successful development of the Deliverables will require the good faith cooperation of Client. Accordingly, Client will fully cooperate with Dialog, including by: (a) providing Dialog with all information necessary or appropriate and relevant to Dialog’s performance as reasonably required by Dialog; (b) making available to Dialog personnel of Client; and (c) providing at least one employee or consultant of Client who will have substantial relevant experience, to act as a Client contact in connection with the development of the Deliverables. Furthermore, if applicable, Client is responsible for providing to Dialog reasonable assistance and co-operation related to, but not limited to, the purchase or leasing of necessary hardware (the specifications for which have previously been agreed between the parties), the acquisition of Client Authorized Third Party Materials, the provision of appropriate Internet connectivity, website hosting and such other goods and/or services as may be reasonably requested by Dialog (collectively, the “Client Materials”). Failure by Client to provide any such cooperation, Content, or Client Materials to Dialog in a timely manner may result in delay of the provision of Services and delivery of Deliverables
  11. Quote Modifications. The parties may propose additions or changes to a Quote. Such additions or changes shall be evidenced in writing in a change order attached to the applicable Quote, which on execution by both parties will amend the applicable Quote and become a part thereof (“Change Order”). Scope, estimated timelines and estimated Services Fees are based on (a) information provided to Dialog by Client, which is assumed accurate, and (b) the terms and conditions set forth in the Quote. If such information changes, additional relevant information becomes available, or Client does not meet its obligations under this Agreement and any Quote, Dialog reserves the right to not proceed with any Services or Deliverables until a Change Order is agreed upon by the parties.
  12. Disclaimers of Warranties. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8.1 AND ANY WARRANTIES, SPECIFICATIONS OR REQUIREMENTS AS SET FORTH ON THE APPLICABLE QUOTE, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND DIALOG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, DELIVERABLES AND MATERIALS PROVIDED TO CLIENT UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, AND EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8.1 AND ANY WARRANTIES, SPECIFICATIONS OR REQUIREMENTS AS SET FORTH ON THE APPLICABLE QUOTE, DIALOG MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE DELIVERABLES, OR ANY OTHER DIALOG OR THIRD-PARTY SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE), WILL MEET CLIENT’S OR ANY OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE SECURE, ACCURATE, RELIABLE, COMPLETE OR ERROR FREE.
  13. Ownership.
    1. Dialog and Client acknowledge and agree that as between themselves:
      1. Client and its Affiliates have exclusive ownership of all Client trademarks and trade names;
      2. The Intellectual Property in all Deliverables, upon full payment in full of the applicable Service Fees and other amounts due to Dialog, are hereby, irrevocably assigned by Dialog to Client excluding (i) the Intellectual Property in any Client Authorized Third Party Materials, (ii) Dialog Materials (as defined below), (iii) Content and (iv) Generic Materials (as defined below). Intellectual Property developed or created through the use of Deliverables by Client, including but not limited to all data arising from or relating to the interaction of users with such websites, will to the maximum extent permitted by law and except as otherwise agreed to by the parties in the Quote, belong to Client on creation; and
      3. Dialog will retain all ownership rights in and to all Dialog Materials and Generic Materials. Dialog hereby grants to Client a perpetual, royalty free, fully paid-up, worldwide, non-exclusive right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify all or any portion of the Dialog Materials and Generic Materials incorporated into the Deliverables or Services solely in connection with the use by Client in accordance with this Agreement for the full enjoyment of the Client’s rights in the Deliverables and Services. The parties acknowledge and agree that Client and its Affiliates may permit their third-party contractors, consultants, outsourcing firms, or other service providers to exercise the license rights in this Section solely in the course of performing services for Client or its Affiliates and provided that such use is in accordance with the terms and conditions of this Agreement and the applicable Quote;
    2. In these Terms, the following terms shall have the following meaning:
      1. “Content” means Client’s complete product database, relevant copy concerning policies, services, information regarding products and product design, photographs, storyboards, copy, press material and other Client assets described in the applicable Quote or provided to Dialog and included in the Deliverables;
      2. “Generic Materials” means materials that are delivered to Client by Dialog under this Agreement that Dialog develops, uses or otherwise integrates into the Services or the Deliverables under a Quote, which: (i) are generic in nature (i.e. are not unique to Client); (ii) can be used generally in the advertising consulting industry to perform functions common to such Services; and (iii) do not provide a competitive advantage to Client or any competing organization in Client’s industry;
      3. “Intellectual Property” means U.S. intellectual or intangible property, and associated rights in, the following: (i) any U.S. copyright, including but not limited to any copyright rights in all text, code and software of any kind, all graphic, photographic, pictorial, or sculptural works, musical works, sound recordings, dramatic works, music videos, motion pictures, and other audio-visual works; (ii) any U.S. patent, trademark, trade dress, trade name, or domain name (regardless of whether such rights have been registered); (iii) U.S. registrations and applications for registration of any of the rights set forth in subsection (i) or (ii) of this Section 13.2; (iv) U.S. trade secrets, confidential information, moral rights and goodwill; (v) data of any kind, including any rights use data containing personallyidentifiable information relating to any natural person, or any e-mail address; and (vi) any other U.S. proprietary or intellectual property rights in any of the foregoing; and
  14. Confidentiality
    1. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) Confidential Information. Subject to Section 14.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that: (a) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary”; (b) if disclosed orally or in other intangible form or medium, is identified by the Disclosing Party or its Representative as confidential or proprietary when disclosed; or (c) due to the nature of its subject matter or the circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary.
    2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
      2. except as may be permitted under the terms and conditions of Section 14.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 14; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 14;
      3. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
      4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
      5. ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 14.
    4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by a valid order issued by a court or government agency or as otherwise required by law to disclose any Confidential Information then, the Receiving Party shall: (a) if not prohibited by Law, promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 14.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 14.4, the Receiving Party remains required by such order or law to disclose any Confidential Information, (a) the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose (as advised by competent counsel) and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment and (ii) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Section 14.
  15. Indemnification by Dialog. Dialog will indemnify, defend and hold harmless Client, its Affiliates and their respective officers, directors, employees and agents and their respective heirs, executors, successors and assigns, from any reasonably foreseeable loss, liability, cost or expense (including reasonable legal fees) related to a claim by a third party (excluding Client’s Affiliates) directly arising out of or directly in connection with:
    1. any knowing or deliberate infringement by the Deliverables or by any methods, technology or materials owned or licensed by Dialog of any Intellectual Property of any third party, except to the extent that the claim or suit is based on (each, an “Infringement Claim Exclusion”):
      1. alterations or modifications to the Deliverables not made by Dialog or any other activity prohibited under this Agreement or a Quote;
      2. a use of the Deliverables in a manner not contemplated by the applicable Quote;
      3. use of the Deliverable after Dialog’s notice of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights ;
      4. Dialog’s compliance with or use of designs, requirements, specifications, instructions, or alterations supplied, developed, or requested by Client;
      5. the Content or Client Materials incorporated into the Deliverables; if such infringement would not have occurred but for such Content or Client Materials; or
      6. use of the Deliverables, or any component thereof, in combination with one or more items, systems, hardware, software or operating environment not provided or authorized by Dialog, if such infringement would not have occurred but for such combination;
    2. any breach by Dialog of the confidentiality obligations under this Agreement; and
    3. any bodily injury, death or damage to property to the extent caused by the gross negligence or willful misconduct of Dialog, its employees or agents while engaged in the performance of the Services. Notwithstanding anything to the contrary in this Agreement or the applicable Quote, Dialog makes no representations, warranties, nor shall Dialog be obligated to indemnify, defend or hold harmless Client (or any other party) for any claims or suits arising out of patent infringement or trademark infringement under this Agreement. Client is solely responsible for conducting any patent searches or trademark searches to the extent Client determines necessary in connection with the use of the Deliverables and for any losses or liabilities arising out of patents and trademarks. Client must bring a claim, including a claim for indemnification, under this Agreement within one (1) year of the delivery of the Deliverable or provision of the Service giving rise to the claim. If an infringement claim is made by a third party against Client or if Dialog believes that a likelihood of such an infringement claim exists, then Dialog, in a reasonable exercise of its discretion, shall use commercially reasonable efforts to either procure for Client the right to continue using the affected part of the Deliverables, modify the affected part of the Deliverables to make it non-infringing while still able to meet the Deliverables’ functionality, or replace it with a non-infringing services of like functionality. If none of the foregoing is reasonably available to Dialog, as determined by Dialog in its sole discretion, Dialog may terminate this Agreement and/or the applicable Quote, in which case Client shall immediately cease use of the affected Deliverables and Dialog shall refund to Client a pro-rata portion of any fees paid for the affected Deliverables
  16. Indemnification by Client. Client will indemnify, defend and hold harmless Dialog, its Affiliates and their respective officers, directors, employees and agents and their respective heirs, executors, successors and assigns, from any reasonably foreseeable loss, liability, cost or expense (including reasonable legal fees) related to a claim by a third party (excluding Dialog’s Affiliates) directly arising out of or directly in connection with:
    1. any matter as to which Dialog has advised Client of the risks involved and Client has still decided to move forward despite those risks;
    2. any breach by Client of the confidentiality obligations under this Agreement;
    3. any bodily injury, death or damage to property to the extent caused by the gross negligence or willful misconduct of Client, its employees or agents;
    4. any matter directly arising out of or in connection with any failure to comply with Section 7; and,
    5. any claim, suit or proceeding made or brought against Dialog, whether including Client or not, based upon or arising out of:
      1. the Services or Deliverables, including allegations that any descriptions or depictions of, or representations regarding, Client’s organization, products, services, industry or competitors are false, deceptive, misleading, unsubstantiated, otherwise inaccurate, or do not accord with relevant legal or regulatory requirements, directives or guidelines;
      2. allegations that Client’s products or services are defective, injurious, or harmful (including any claim for bodily injury or death);
      3. allegations that the manufacture, sale, distribution or use of any of Client’s products or services violates the rights of any third parties or that the advertising, publicity or promotion of Client’s products or services encourages or induces the violation of the rights of any third parties
      4. any Infringement Claim Exclusion;
      5. use of the Deliverables outside the Home Country (as defined below);
      6. use of any Deliverables by Client, Client’s employees, authorized agents or by anyone else who obtained the Deliverables, directly or indirectly, from Client when such claim arises out of Dialog’s obligations under the applicable union codes or collective bargaining agreements as contemplated under Section 20.14;
      7. use of any Content or Client Materials not in breach of the terms of this Agreement or applicable Quote; or
      8. allegations that the use by a person, other than Dialog, of a Deliverable, including commercials produced by Dialog, violates any of Dialog’s obligations under the applicable union codes or applicable production or talent contracts relating to the production of commercials or advertisements.
  17. Indemnification Procedures. Each party shall promptly notify the other party in writing of any claim for which such party believes it is entitled to be indemnified pursuant to Section 15 or Section 16. The party seeking indemnification (the “Indemnified Party”) shall cooperate with the other party (the “Indemnifying Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s failure to perform any obligations under this Section 17 will not relieve the Indemnifying Party of its obligations under Section 15 or 16 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Each party shall use commercially reasonable efforts to mitigate any losses under its reasonable control.
  18. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY’S BREACH OR SECTION 14 OR CLIENT’S PAYMENT OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT (WHETHER ARISING IN CONTRACT, INCLUDING INDEMNIFICATION OBLIGATIONS, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) WILL:
    1. THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL DAMAGES, LOSSES, CAUSES OF ACTION OF ANY NATURE WHATSOEVER EXCEED THE AMOUNT OF THE SERVICE FEES PAID OR DUE AND PAYABLE BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM; AND
    2. EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OR IMPAIRMENT OF GOODWILL, LOSS, CORRUPTION OR INACCURACY OF DATA, OR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF THE DELIVERABLES OR SERVICES, INCLUDING THE INABILITY TO USE, EVEN IF THE OTHER PARTY OR AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
      The essential purpose of this Section is to limit the potential liability of the parties arising out of this Agreement or a Quote whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
  19. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, unless previously consented to in writing by the other party in its sole discretion, neither party will, directly or indirectly, for itself or others:
    1. solicit or induce any person who is employed or engaged by the other party to terminate or alter his, her or its contractual or employment relationship with such other party; or
    2. otherwise interfere in any manner with the contractual or employment relationship between the other party and any person who is employed or engaged by the other party. Notwithstanding the foregoing, neither party will be in breach of this Section 19 if that party hires any person or entity who is now employed or engaged by the other party, if such person or entity learns of the position by advertisement or other public channels and was not specifically targeted by such party
  20. Miscellaneous.
    1. Force Majeure. The obligations of a party (other than payment) will be suspended by the occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance impossible including, acts of God, war, fire, flood, accident, strike, casualty, power failures, governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials. The party invoking force majeure shall (a) send written notice thereof to the other party within a reasonable time after the affected party knew or should have known that performance would be delayed or prevented due to the force majeure and (b) take reasonable steps to limit the duration and effect of any such force majeure.
    2. Independent Contractor. Except as expressly authorized in Section 7, nothing contained in this Agreement, a Quote or any communication between the parties will create a joint venture, establish a relationship of principal and agent, a relationship of partnership, or any other relationship of a similar nature between the parties. Dialog is solely responsibility for payment of compensation to its personnel and for all insurance or other employment-related benefits to which such personnel may be entitled.
    3. Insurance. Dialog agrees to maintain during the Term, the following minimum insurance coverage:
      1. Workers’ Compensation Insurance: Dialog shall maintain workers compensation insurance as required under any workers compensation or similar law in the jurisdiction where Dialog is located;
      2. Professional Liability Insurance: Dialog shall maintain professional liability insurance with limits of not less than $1,000,000 each occurrence and in aggregate;
      3. Commercial General Liability Insurance. Dialog shall maintain commercial general liability insurance with a limit of not less than $1,000,000 each occurrence and in aggregate; and,
      4. Automobile Liability Insurance. Should agency own and operate company vehicles, agency shall maintain automobile liability insurance with a limit of not less than $1,000,000 combined single limit. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned autos). At Client’s request, Dialog shall furnish certificates of insurance, evidencing the insurance coverage above. Client shall be included as an additional insured under the Commercial General Liability and Automobile Liability insurance. Insurance shall apply on a primary and non-contributory basis, with respect to any other insurance or self-insurance programs afforded to Client.
    4. Notices. All notices, claims and other communications hereunder will be in writing, and is deemed to have been duly given if personally delivered to an officer of the receiving party, upon receipt after notice was mailed by registered or certified mail return receipt requested, or by overnight delivery service to the parties at their respective addresses set forth in the applicable Quote, or to such other address as either party shall designate by written notice to the other party in accordance with this Section 20.4.
    5. Assignment and Subcontracting. Neither party may assign this Agreement or delegate any of its obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that (a) a party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets without the other party’s consent so long as such party promptly notifies the other party in writing of such assignment and the assignee agrees in writing to assume all of the obligations of the assigning party under this Agreement and (b Client may assign this Agreement or delegate any of its obligations hereunder to any of its Affiliates only if Client, its Affiliate, and Dialog enter into an agreement whereby Client guarantees the performance by its Affiliate of all the obligations of Client under this Agreement. All the terms and conditions of this Agreement will be binding upon and for the benefit of the parties and their respective successors and permitted assigns. Dialog may assign this Agreement in conjunction with a corporate restructuring whereby an Affiliate of Dialog is the assignee. Dialog may engage its Affiliates and subcontractors to perform the Services without Client’s consent; provided that Dialog shall be responsible for any breaches of this Agreement or the applicable Quote by any such Affiliates and subcontractors. Notwithstanding anything to the contrary in this Agreement, in the event Client requires Dialog to use specific subcontractors to perform the Services or create the Deliverables, to the extent that Dialog does not direct or supervise their work, or Dialog is authorized to engage such subcontractor as agent on Client’s behalf, Dialog will neither be responsible for the Services performed nor the materials and Deliverables delivered by such subcontractors.
    6. No Implied Waiver. A party’s failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement will not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof
    7. Governing Law and Jurisdiction. These Terms and each Quote will be construed, interpreted, and governed by the laws of the State of Texas, excluding its conflict of law principles. The parties agree to submit to the exclusive jurisdiction of, and venue in, the state or Federal courts in Travis County, Tx in any dispute arising out of or relating to this Agreement, a Quote, the Services or the Deliverables. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods, howsoever enacted in the applicable jurisdiction, will have no application to this Agreement, a Quote, the Services or the Deliverables. Each party shall comply in all respects with all applicable laws and regulations related to this Agreement, each Quote, the Services and/or the Deliverables
    8. Prevailing Party. In the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to any dispute related to this Agreement, a Quote, the Services and/or the Deliverables, the prevailing party in the arbitration, suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
    9. Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, or enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby
    10. Headings. Headings used in this Agreement are provided for convenience only and will not be used to construe meaning or intent.
    11. Entire Agreement. These Term, its Schedules, and the Quotes constitute the entire agreement between the Client and Dialog with respect to the subject matter hereof, and supersedes any previous communications, understandings and agreements between the parties whether written or oral, except for any Quotes entered into before the Effective Date. In the event of any conflict between this Agreement and a Quote, this Agreement will take precedence. Notwithstanding anything to the contrary stated therein, terms and conditions stated on any purchase order, quote, acknowledgement, invoice, online document or acknowledgement, or other such document provided by a party to the other party, will be of no force or effect and will not change, alter, or add to the terms of this Agreement or a Quote. These Terms may only be amended by further agreement in writing and signed by the parties. If there is a conflict between these Terms and any other Schedule attached hereto, then the terms and conditions of the other Schedule shall prevail.
    12. Counterparts and Delivery. Any Quote may be executed in one or more counterparts and by different parties in separate counterparts. All of such counterparts will constitute one and the same agreement and will become effective when one or more counterparts have been signed by each party and delivered to the other party. Any Quote may be executed by the parties and transmitted by electronic transmission and, if so executed and transmitted, will be for all purposes as effective as if the parties had delivered an executed original document.
    13. Use Outside Home Country. If Client intends to use any Deliverables outside the United States (the “Home Country”), Client shall (a) notify Dialog in writing at least sixty (60) days prior to such use and (b) negotiate compensation for such use in good faith. Dialog shall not be required to secure any rights in the Deliverables for use outside the Home Country unless specifically agreed to in writing. Client agrees and acknowledges that Deliverables used, published or distributed outside the Home Country, including by means of the internet, may violate one or more U.S. or foreign laws, rules or regulations, and that Client shall bear the sole risk and have the sole responsibility for all such U.S. and foreign violations, except to the extent that Dialog has specifically agreed in writing to assume any such risk or responsibility in a Quote.
    14. SAG-AFTRA. Client acknowledges that Dialog may be a signatory to collective agreements with the Screen Actors Guild (SAG), American Federation of Television and Radio Artists (AFTRA) and American Federation of Musicians (AF of M) and that such collective bargaining agreements provide for Dialog to be ultimately liable to performers for payments that may become due because of use of Deliverables by Client or any party to whom Client provides any of the Deliverables. Therefore, Client will indemnify Dialog in accordance with Section 16 against any claim, suit or proceeding made or brought against Dialog for use of any Deliverables by Client, Client’s employees, authorized agents or by anyone else who obtained the Deliverables from Client to the extent that such claim arises out of Dialog’s obligations under the applicable union codes or collective bargaining agreements.

SCHEDULE 1
DIGITAL DEVELOPMENT
ADDITIONAL TERMS

Capitalized terms used but not defined herein shall have the meanings assigned to them in the Cover Page and Schedule 1 to which this Schedule 3 is attached.

If Dialog develops any digital Deliverables (including websites, microsites, banners, content placement, and applications running on any computer, smartphone or tablet) for Client (“Digital Development Services”), the following terms and conditions will apply in addition to the terms set out in Schedule 1 of this Agreement:

  1. Third Party Hardware and Software. Dialog makes no representation or warranty as to the adequacy or capacity of any hardware, third-party software, or Client Materials to achieve some or all of the performance objectives of Client. Many factors, including but not limited to the type of network, the amount of total network traffic, the type and pattern of usage of the Deliverables and Services, or other software on the network, will impact the performance of the Deliverables and the Services
  2. Virus Scanning. Dialog shall use commercially reasonable efforts to scan the Deliverables, excluding Content and Client Materials, that constitute, in whole or in part, programming code or software for any “time bomb,” “timed lockout,” “back door” or other disabling device that would intentionally enable Dialog or any other person, except Client and third parties authorized by Client, to have access to or control over the Deliverables or servers for the Client’s websites.
  3. Acknowledgement of Limitation on Use. Client acknowledges that the Deliverables may contain errors and are not designed or intended for use in, or to be used to create end-user products for use in on-line control equipment in hazardous environments requiring fail-safe performance, including without limitation, the operation of energy facilities, navigation or communications systems, air traffic control, life support machines or weapons systems in which the failure of the Deliverables or end-user products could lead to death, personal injury or physical or environmental damage.

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Terms & Conditions

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