SERVICES AGREEMENT
Exhibit
10.2
SERVICES
AGREEMENT
THIS VENDOR SERVICES AGREEMENT
(the “Agreement”) is
made and entered into as of the 15th day of July, 2008 (the “Effective Date”), between
United Marketing Solutions, Inc., a Virginia Corporation whose
address is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ (“CUSTOMER”) and ColorFX, LLC (a division of
Rock Communications), an Iowa Corporation, with offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("VENDOR”). This
Agreement, as may be amended from time to time, together with each Statement of
Work (“SOW”) executed
between the parties, forms the agreement among the parties relating to the
provision of professional services as contemplated herein.
In
consideration of the mutual promises contained herein, the parties agree as
follows:
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1.
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SERVICES
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1.1
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Services
Provided by VENDOR. During the term of this Agreement,
VENDOR agrees to provide certain turnkey printing services to CUSTOMER,
and/or for the benefit of CUSTOMER’s clients, partners or affiliates, (the
“Services”) which
may be authorized by CUSTOMER from time to time, by the execution of SOWs
as described in this Agreement. VENDOR shall not be obligated to provide
any service and CUSTOMER shall not be obligated to pay for any service
until an SOW or other written authorization has been executed in
accordance with this Agreement. Furthermore, CUSTOMER shall not be
obligated to pay for any service until an acceptable delivery is made in
accord with the requirements of this Agreement, including, without
limitation, the Warranty of Service set forth hereinbelow. It is
understood by the parties that delivery by VENDOR shall be made to a
independent contractor for CUSTOMER, ▇▇▇▇ Associates, or other designated
third parties.
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1.2
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Warranty of
Service. VENDOR warrants that all materials produced and
Services provided under this Agreement (a) will be of original development
and will not infringe or violate any patent, copyright, trade secret,
trademark, or other third party intellectual property rights; (b) will be
performed in accordance with applicable laws and regulations; (c) will be
free from defects in materials and faulty workmanship and conform to all
specifications and the disclosed purposes of CUSTOMER and meet all
specifications as they are contained in an SOW; (d) will be provided by
VENDOR’s personnel having the appropriate level of skills and training;
and (e) will be performed with care, skill and diligence, consistent with,
or above applicable professional standards, in accordance with generally
accepted industry standards.
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1.3
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Point of
Contact. Each party shall designate a principal point of
contact between the parties for all matters relating to services provided
under a particular SOW. A party may designate a new point of
contact by written notice to the other party.
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1.4Time is of
the essence of VENDOR’s obligations hereunder. Deliveries and/or
performance are to occur as specified by CUSTOMER. If VENDOR fails to meet
any milestone date and/or schedule, CUSTOMER, without limiting its other
rights or remedies as specified herein, may direct expedited routing and
any excess costs incurred thereby shall be paid for by VENDOR. CUSTOMER
shall not be liable for VENDOR’s commitments or production arrangements in
excess to those of the CUSTOMER or in advance of the time necessary to
meet CUSTOMER’s schedule.
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2.
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STATEMENTS OF
WORK
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2.1
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Issuance of
Statements of Work. All SOWs or other forms of written
authorization executed between the parties shall be subject to the terms
and conditions set forth in this Agreement. Each SOW shall
specify the scope and schedule of Printing Services to be performed by
VENDOR for CUSTOMER and the applicable fees, which is attached hereto and
incorporated herein by reference as Schedule “1”. In the
absence of express written agreement by the parties otherwise contained in
a SOW (as set forth hereinbelow), in the event any provision contained in
an SOW conflicts with any term, condition, or clause in this Services
Agreement, the provisions of this Services Agreement shall control. In the
event that the parties desire that the provisions of the SOW control, such
SOW shall express that the conflict exists, is recognized by the parties
and that the SOW shall control for that provision and that SOW
only. CUSTOMER may, at any time, upon notice to VENDOR, request
changes to an SOW. VENDOR will provide CUSTOMER with an
estimate of the impact, if any of such requested changes on the project
schedule and resources. If the parties mutually agree to such
changes, a written description of the agreed change will be prepared and
executed between the parties and the relevant SOW will be amended
accordingly.
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CUSTOMER
Rev.
06/08
1
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2.2
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Activation
of Statements of Work. An SOW under this Agreement shall
become effective and binding once executed by both CUSTOMER and
VENDOR.
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2.3
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Termination
of Statements of Work. CUSTOMER may at any time
terminate the Services pursuant to an SOW. Upon termination of
an SOW, VENDOR shall promptly turn over to CUSTOMER all documentation,
programs, reports, data, materials, and work in process produced under
such SOW and which was generated during the performance of the terminated
SOW.
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3.
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COMPENSATION &
PAYMENT. VENDOR agrees to provide services to CUSTOMER,
and CUSTOMER agrees to accept services and pay VENDOR for same as
follows:
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3.1
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Fees, Rates
& Payment Terms. The fees, rates, and payment terms
for the services provided by the VENDOR shall be expressly set forth in
each SOW.
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3.2
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Invoices
and Payments. For all services, fees, expenses, amounts
owed and reimbursements described in this Agreement, including any SOW,
unless otherwise provided for in an SOW, VENDOR shall prepare and submit
invoices to CUSTOMER which shall include reasonably detailed descriptions
of the services performed during the period. Invoices shall be
submitted on a monthly basis for Services and materials delivered pursuant
to Services accepted by CUSTOMER and shall describe the Services
performed, and such other information relating to the Services as CUSTOMER
may reasonably request. CUSTOMER will pay to VENDOR the
invoiced amounts within [redacted] days of receipt of the
invoice.
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3.3
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Records. Each
party will maintain complete and accurate records relating to any amounts
invoiced or paid in connection with the services provided under this
Agreement.
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4.
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TERM AND
TERMINATION
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4.1
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Term. This
Agreement will commence on the Effective Date and will remain in full
force and effect until July 31, 2013 or terminated as provided
in this Section 4.
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4.2
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Termination
due to Breach. In
the event either party materially breaches this Agreement, the party not
in breach may terminate this Agreement by giving written notice to the
breaching party in accord with the agreements set forth
below.
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(a)
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If
the breach/breaches are not cured within Twenty (20) days after written
notice is given to the breaching party specifying the breach, the party
not in breach may terminate this Agreement at the conclusion of the twenty
day period and thereafter pursue any and all remedies subject to the
provisions of this Agreement.
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(b)
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In
the event that the breach/breaches cannot reasonably be cured, the party
not in breach may terminate this Agreement immediately by giving written
notice to the breaching party and thereafter pursue any and all remedies
subject to the provisions of this
Agreement.
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4.3
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Termination
for Insolvency. Either party may terminate this
Agreement upon written notice to the other party in the event such other
party (i) seeks reorganization or release under the
U.S. Bankruptcy Code, (ii) seeks the appointment of a trustee,
receiver or custodian, (iii) becomes the subject of a proceeding seeking
the liquidation, winding-up, dissolution, reorganization or the like of
such party, and such proceeding is not dismissed within sixty (60) days of
the commencement thereof, (iv) makes an assignment for the benefit of
creditors, or (v) has a substantial part of such party's property become
subject to any levy, seizure, assignment, application or sale for or by
any creditor or government agency.
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CUSTOMER
Rev.
06/08
2
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4.4
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Termination
for Convenience. CUSTOMER or VENDOR may terminate
this Services Agreement for convenience by a unilateral notice that
provides one hundred eighty (180) days’ prior written notice of the
effective date of the termination to the other party. The parties may
otherwise, with express mutual written notice, terminate this Services
Agreement for their mutual convenience at a mutually acceptable future
termination date or upon the passage of mutually acceptable timeframe
agreed between the parties.
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4.5
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Effect of
Termination. Upon termination of this Agreement, or
any SOW
attached hereto, or any Services for any reason, (i) all materials,
including without limitation, confidential information, provided by either
party to the other will be promptly returned after the effective date of
termination, and (ii) all earned and unpaid fees and expenses will become
immediately due and payable. Each party's termination rights
set forth in this Agreement are cumulative and are in addition to all
other rights and remedies available to the
parties.
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4.6
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In
the event of any termination of this Agreement by either CUSTOMER or
VENDOR, CUSTOMER’s maximum liability to VENDOR shall not exceed the value
of the unpaid portion of the Services actually completed by VENDOR and
accepted by CUSTOMER as of the effective date of the
termination.
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5.
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INDEMNIFICATION AND
LIABILITY
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5.1
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Indemnification.
Subject to the limitation of liability set forth herein, as applicable
pursuant to its express terms, CUSTOMER agrees at its expense to defend,
indemnify, and save VENDOR harmless from any and all loss, claims, damages
and expenses, including reasonable attorney’s fees, which VENDOR may
suffer or incur arising out of a claim, charge or suit instituted against
VENDOR by any person, firm, corporation, or other entity arising from,
relating to, or as a result of (a) any breach of CUSTOMER’s
responsibilities, warranties, representations, or covenants under this
Agreement, or (b) the materials furnished by CUSTOMER for use or inclusion
in the Work. Notwithstanding the foregoing, CUSTOMER’s
indemnification of VENDOR shall not extend to losses, claims or damages
arising from the goods or services of its advertisers, or as a result of
VENDOR’s gross negligence or willful misconduct or
omissions.
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Subject
to the limitation of liability set forth herein, as applicable pursuant to its
express terms, VENDOR agrees at
its expense to defend, indemnify, and save CUSTOMER harmless from any and all
loss, claims, damages and expenses, including reasonable attorney’s fees, which
CUSTOMER may suffer or incur arising out of a claim, charge or suit instituted
against CUSTOMER by any person, firm, corporation, or other entity arising from,
relating to, or as a result of (a) VENDOR’s conduct of its business or its acts
or omissions, in performing under this Agreement; (b) a breach by VENDOR of its
responsibilities, warranties, representations, or covenants under this
Agreement. Notwithstanding the foregoing, VENDOR’s indemnification of
CUSTOMER shall not extend to losses, claims or damages arising as a result of
CUSTOMER’s gross negligence or willful misconduct or
omissions.
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5.2
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Limitation
of Liability. Except for claims against VENDOR
arising under sections 1(b) (warranty of services), 5 (indemnification and
liability), 6 (proprietary information) and 8.1 (VENDOR’s representations
and warranties), and for tortious interference with contractual relations,
in no event shall either party be liable to the other for indirect,
special, incidental, consequential, punitive, exemplary or tort damages
(including, without limitation, any damages resulting from loss of use,
loss of data, loss of profits or loss of business) arising out of or in
connection with this agreement or the subject matter thereof, whether or
not either party has been advised of the possibility of such
damages.
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CUSTOMER
Rev.
06/08
3
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6.
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PROPRIETARY
INFORMATION
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6.1
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“Confidential
Information”
means
confidential and proprietary business and/or technical information
or any information that may
have commercial or other value in CUSTOMER’s business, or that of its client, partner,
or affiliate, and is
confidential or proprietary in nature, including but not limited to:
(a) trade secrets, inventions,
granted or pending patents, copyrights, and trademarks, (b) concepts, know-how, ideas,
techniques, discoveries, and improvements, (c) algorithms, formulas,
specifications, research, client information, client
marketing development, data, databases, ,
(d) technical or other
representations, documentation, diagrams, and flow charts, and
(e) other , business, financial,
customer, supplier and product development plans or information,
product pricing
information, customer pricing information, schedules, forecasts, strategies,
marketing plans, techniques, and other similar information. Confidential
Information may be written or verbally communicated information which: (i)
if in tangible form, has been marked trade secret, confidential,
proprietary or with words of similar import; (ii) if oral or other
intangible form, which is stated to be confidential at the time of
disclosure; or (iii) even if not so marked, stated or described which
VENDOR should have considered under the circumstances of its disclosure to
be trade secret, confidential or proprietary information of
CUSTOMER. Confidential Information may include information that
is confidential or proprietary to CUSTOMER’s clients, partners or
affiliates for which CUSTOMER is authorized to disclosed solely for the
purposes of providing services to such clients, partners or
affiliates. Confidential
Information does not include information that: (1) is or becomes generally
available to the public other than as a result of a disclosure in breach
of this Agreement; (2) is or becomes available VENDOR on a
non-confidential basis from a source other than CUSTOMER, that is not
bound by a confidentiality or similar agreement prohibiting the disclosure
thereof; (3) is within VENDOR’s possession prior to being furnished,
provided that the VENDOR can establish with appropriate documentation that
the same or substantially similar data or information was already in
VENDOR’s possession at the time of disclosure by CUSTOMER; or (4) has been
independently developed by VENDOR, provided VENDOR can establish with
appropriate documentation that the same or substantially similar data or
information was developed by VENDOR without reference to, use of, or
reliance upon the data or information disclosed by
CUSTOMER.
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7.
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DISPUTE
RESOLUTION
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7.1
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Definition
of Dispute. Any controversy or claim, whether based on
contract, tort, misrepresentation, or any other legal theory, related
directly or indirectly to this Agreement ("Dispute"), shall be
resolved solely in accordance with the terms of this Section
7. Either party reserves the right to seek an injunction or
other equitable relief in court to prevent or stop a breach of this
Agreement or a violation of rights either party has under
law.
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7.2
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Material
Dispute Resolution. In the event of a material
dispute concerning the terms or performance hereunder, CUSTOMER and VENDOR
hereby agree that (i) they will first attempt, in good faith, to resolve
such dispute through direct negotiation within thirty (30) days of the
date either party notifies the other party of the existence of a
dispute. If a shorter time period is indicated by the
circumstances, the parties agree that the time period shall be reduced
accordingly.
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8.
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GENERAL
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8.1
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Representations
and Warranties. VENDOR represents and warrants that: (a)
it is financially solvent and has the ability to perform its obligations
hereunder; (b) it has not entered into and will not enter into any other
agreement that conflicts with this Agreement or limits its ability to
perform the Services; (c) it has full authority and sufficient right,
title, and interest in and to its work product used in the course of the
Services; and (d) the Services or anything developed, created or provided
by VENDOR do not infringe any patent, trademark, copyright, trade secret
or other proprietary right of any third
party.
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8.2
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Assignments. Neither
party will assign this Agreement, in whole or in part, without the other
party's prior written consent; provided, however, that either party may
assign this Agreement and any applicable SOW to any entity that is
wholly-owned, directly or indirectly, by such party or to any entity which
acquires all or substantially all of the business or assets of such party,
without the prior written consent of the other party, provided that such
assignee agree in writing to the terms and conditions of this
Agreement. Any attempted assignment of this Agreement other
than as permitted above will be null and void. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the
benefit of both parties, their successors and permitted
assigns.
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CUSTOMER
Rev.
06/08
4
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8.3
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Notices. All
notices, requests, demands and other communications to be given in
connection with this Agreement shall be made in writing and shall be
deemed sufficiently given if given in writing and be sent to the addresses
set forth below or to such other address as either party may from time to
time specify in writing, and shall be deemed given as indicated: (a) upon
personal delivery when actually delivered; (b) by overnight courier, upon
written verification of receipt; (c) by facsimile transmission or other
electronic transmission, upon acknowledgement of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt
requested, upon verification of
receipt.:
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To
CUSTOMER:
United
Marketing Solutions, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇,
President
(___)
___-____
(___)
___-____ Telefax
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To
VENDOR:
COLORFX,
INC. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇,
President
________
________
Telefax
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8.4
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Independent
Contractor. The
relationship between VENDOR and CUSTOMER shall be at all times that of
independent contractor. Neither party has the authority to bind
the other party nor to incur any obligation on behalf of the
other. CUSTOMER and VENDOR shall be responsible for and shall
pay promptly all federal, state, and municipal taxes, charges and
assessments with respect to its employees or agents, including but not
limited to, social security, unemployment, federal and state withholding
and other taxes. Neither party may sign contracts for, or
handle cash or negotiable instruments of the other party without such
party’s written consent. VENDOR is solely responsible for all
of its employees and agents and its labor cost and expenses and for any
and all claims, liabilities or damages or debts of any type whatsoever
that may arise on account of its activities or those of its employees or
agents in the performance of the Services pursuant to this
Agreement.
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8.5
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Non-Solicitation. During
the term of this Agreement and for a period of twelve (12) months
thereafter, neither party shall, on its own or on behalf of any other
person or entity (i) hire or solicit any employee or independent
contractor of the other party except through a general advertisement; (ii)
in any manner attempt to influence or induce any employee or independent
contractor of the other party to leave the employment of such party; (iii)
disclose to any person or entity any information obtained while rendering
services to or receiving services from the other party concerning the
names and addresses of the other party’s employees or independent
contractors; or (iv) otherwise interfere with the relationship of the
other party and its employees or independent
contractors.
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8.6
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Force
Majeure. Neither party shall be liable for any failure
to perform its obligations under this Agreement if prevented from doing so
by a cause or causes beyond its reasonable control as applicable under law
as a force majeure condition.
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8.7
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Business
Days. Whenever the terms of this Agreement call for the
performance of a specific act on a specified date, which date falls on a
Saturday, Sunday or legal U.S. holiday, the date for the performance of
such act shall be postponed to the next succeeding regular business day
following such Saturday, Sunday or legal U.S.
holiday.
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CUSTOMER
Rev.
06/08
5
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8.8
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Severability. If
any provision of this Agreement is held to be illegal, invalid or
unenforceable, such provision will be fully severable and this Agreement
will be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof will remain in full force and effect and will not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there will be added automatically as
part of this Agreement, a provision as similar in its terms to such
illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
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9.
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GOVERNING
LAW. ALL PROVISIONS OF THIS AGREEMENT SHALL BE SUBJECT
TO, ENFORCED AND CONSTRUED PURSUANT TO THE LAWS OF THE COMMONWEALTH OF
VIRGINIA, WITHOUT REGARD, TO ITS CONFLICT OF LAWS
PRINCIPLES.
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10.
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Entire
Agreement/Amendment. This Agreement, any executed SOW
and any exhibits attached hereto contain the entire understanding between
the parties with respect to the subject matter hereof and supersede all
prior or contemporaneous negotiations and agreements, oral or written,
between them regarding the subject matter hereof and constitute the entire
agreement of whatsoever kind or nature existing between the parties
respecting the subject matter hereof. As between the parties,
no oral statements or prior written material not specifically incorporated
herein shall be of any force and effect; the parties specifically
acknowledge that in entering into and executing this Agreement, the
parties relied solely upon the representations and agreements contained in
this Agreement and no others. All prior or contemporaneous
representations or agreements, whether written or verbal, not expressly
incorporated herein are superseded and no changes in or additions to this
Agreement shall be recognized unless and until made in writing by all
parties hereto.
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11.
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Counterpart
Execution. This Agreement may be executed in multiple
counterparts, including by facsimile or other electronic transmission, and
each of which shall be deemed to be an original and all of which together
shall constitute but one and the same
instrument.
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12.
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Attorney’s
Fees. If any action at law or in equity, including an
action for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled, in
addition to other such relief as may be granted, to a reasonable sum as
and for attorney's fees, costs of collection, and costs of any litigation,
which fees may be set by the court in the trial of such action or may be
enforced in a separate action brought for that
purpose.
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13.
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No
Waiver. The failure of either party to require
performance by the other party of any provision hereof shall not affect
the full right to require such performance at any time thereafter; nor
shall the waiver by either party of a breach of any provision hereof be
taken or held to be a waiver of the provision
itself
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14.
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Interpretation. Headings
used in this Agreement are for convenience only and will not be deemed to
be operative text. Terms of gender will be deemed
interchangeable as will singular and plural terms, in each case unless the
context otherwise requires. All monetary amounts used herein
will be deemed to refer to current U.S. dollars, unless the context
otherwise requires.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their authorized
agents as and made effective as of the date first above written.
CUSTOMER
Rev.
06/08
6
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United
Marketing Solutions, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Phone:(▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
_________________________________________________
Signature
Printed
Name: ▇▇▇▇▇▇ ▇▇▇▇, President
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ColorFX,
Inc.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇____
_________________________________________________
Signature
Printed
Name: ▇▇▇ ▇▇▇▇▇, President
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Exhibits
Attached:
Schedule
1 – [redacted]
CUSTOMER
Rev. 06/08
7