The Order
The Order Form (the “Order”) executed by Client and NewMedia Digital (“NewMedia”) confirms the schedule of professional services, products, and fees to be provided to Client by NewMedia according to the Service Terms outlined below (“Service Terms”) and forms a binding agreement (the “Agreement”) between NewMedia and the Client specified in the Order.
Scope of Services
NewMedia will provide services outlined in the Order. Should Client request NewMedia to perform additional services beyond what is outlined in the Order, or should NewMedia determine that the scope of the services move outside of what is specified on the Order (“out of scope”), NewMedia and Client will negotiate in good faith with respect to the terms, conditions, and compensation for such additional services.
Any agreement for additional services will be set forth in writing on a newly agreed to executed Order and considered an addendum to this Agreement.
Ownership
All campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs, graphic materials, film, music, transcriptions, or other materials that are subject to copyright, trademark, patent, or similar protection (collectively, the “Work Product”) produced by NewMedia are the property of the Client provided: (1) such Work Product is accepted in writing by the Client within twelve (12) months of being proposed by New Media; and (2) Client pays all fees and costs associated with creating and, where applicable, producing such Work Product. Work Product that does not meet the two foregoing conditions shall remain New Media’s property.
Notwithstanding the foregoing, it is understood that NewMedia may, on occasion, license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license. In such instances, Client agrees that it remains bound by the terms of such licenses. NewMedia will keep Client informed of any such limitations.
Term
The term of this Agreement shall commence on the date provided on the Order (“Commencement Date”) and terminate as specified on the order, if applicable.
Compensation and Billing Procedure
All fees for professional services shall be invoiced on an as incurred basis unless specified in the Order.
All invoices shall be rendered by NewMedia on or about the first day of each month and will be payable the tenth day of the month by Client.
All sales will be billed in U.S. dollars unless otherwise specified in the Order Form.
Invoices shall be submitted in an itemized format. Interest will be charged on overdue invoices at a rate of 1.5% percent per month, or the maximum permitted by law, whichever is less.
The cost of production materials and services shall be billed by NewMedia upon completion of the production or upon receipt of supplier invoice prior thereto.
On all outside purchases other than for media, NewMedia will attach to the invoice proof of billed charges from suppliers. NewMedia will invoice Client for all media and third-party costs sufficiently in advance of the due date to permit payment by Client to NewMedia in order to take advantage of all available cash discounts or rebates.
Confidentiality and Safeguard of Property
Client and NewMedia respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. NewMedia and Client will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither NewMedia nor Client will be responsible for any loss or damage.
Indemnities
NewMedia agrees to indemnify and hold Client harmless with respect to any claims or actions by third parties against Client based upon material prepared by New Media, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright, or other intellectual property right, except where any such claim or action arises out of material supplied by Client to Mew Media.
Client agrees to indemnify and hold NewMedia harmless with respect to any claims or actions by third parties against NewMedia based upon materials furnished by Client or where material created by NewMedia is substantially changed by Client. Information or data obtained by NewMedia from Client to substantiate claims made in advertising shall be deemed to be “materials furnished by Client.” Client further agrees to indemnify and hold NewMedia harmless with respect to any death or personal injury claims or actions arising from the use of Client’s products or services.
Commitments to Third Parties
All purchases of media, production costs, and engagement of talent will be subject to Client’s prior approval. Client reserves the right to cancel any such authorization, whereupon NewMedia will take all appropriate steps to effect such cancellation, provided that Client will hold NewMedia harmless with respect to any costs incurred by NewMedia as a result.
If at any time NewMedia obtains a discount or rebate from any supplier in connection with New Media’s rendition of services to Client, NewMedia will credit Client or remit to Client such discount or rebate.
For all media purchased by NewMedia on Client’s behalf, Client agrees that NewMedia shall be held solely liable for payments only to the extent proceeds have cleared from Client to NewMedia for such media purchase; otherwise, Client agrees to be solely liable to media (“Sequential Liability”). NewMedia will use its best efforts to obtain agreement by media to Sequential Liability.
Amendments
Any amendments to this Agreement must be in writing and signed by NewMedia and Client, or specified in am executed Order.
Notices
Any notice shall be deemed given on the day of mailing or, if notice is by telegram, e-mail, or fax, on the next day following the day notice is deposited with the telegraph company for transmission, or e-mailed or faxed.
Governing Law
This Agreement shall be interpreted in accordance with the laws of the State of South Carolina without regard to its principles of conflicts of laws.
