Marketing Services Agreement

RECITALS

A. BBCG is an independent, full-service marketing communications agency with experience providing marketing, consulting, and public relations planning for clients in the water and wastewater industry.

B. Client wishes to engage BBCG to prepare and produce materials for its (public relations, advertising, web development, video production, digital or social media) marketing project (the “Project Deliverables” or “Deliverables”).

C. BBCG agrees to provide certain services and perform certain tasks to assist Client with its Deliverables (“Services”).

In consideration of the mutual covenants set forth in this Agreement, the BBCG and Client hereby agree as follows:

1.     Applicable Terms

a.     These terms govern the sale and purchase of the products and/or services referred to in Seller’s proposal or quotation for Project Deliverables or Services

i.     The price and quantities of the Project Deliverables or Services set forth in an Accepted Order (as defined in Proposals scope of work), together with the delivery schedule and the description of the scope of work in BBCG’s proposal or quotation, and

ii.     these terms and conditions, comprise the complete and exclusive agreement between the parties (the “Agreement”). All prior communications, documents, negotiations and representations, if any, are merged herein. Whether these terms are included in an offer or an acceptance by Seller, such offer or acceptance is conditioned on Buyer’s assent to these terms. Any additional, different or conflicting terms contained in Buyer’s request for proposal, specifications, purchase order or any other written or oral communication from Buyer, including any terms forth in the Accepted Order other than price and quantities, shall not be binding on Seller, whether or not they would materially alter this document, and Seller hereby objects thereto.

2.     Services

a.     Scope of Services: BBCG agrees to perform the specific services and duties for the Project Deliverables as set forth in the document entitled Proposal, incorporated hereto in this Agreement (the “Program”).

b.     Fees: Unless otherwise indicated, BBCG fees for the Program include all Services performed by, and Deliverables created by BBCG, (including, but not limited to copywriting, copy editing, case studies, graphic design, project management, website development, social media program management, ad placement, or video production).

c.     Industry Standard: BBCG agrees that Services rendered under this Agreement shall be performed in accordance with the standards customarily adhered to by an experienced and competent professional firm using the degree of care and skill ordinarily exercised by reputable professionals practicing in the marketing and communications field.

d.     Modification by Client: As work on the Deliverables progresses, Client may choose, or it may become necessary, to include additional work not specifically listed in the Project Scope & Terms. Services or Deliverables outside of the Project Scope & Terms are billed at the rates included on the Rate Card, attached hereto as Exhibit B. BBCG will provide budget and time estimates for all projects exceeding $500 or one (1) full day of work (“Change Order”). Client must provide payment in full for the Change Order prior to the commencement of the additional work. The Change Order does not otherwise affect the terms of this Agreement.

e.      Force Majeure: Services and Deliverables will be provided in accordance with all applicable laws and regulations from time to time in force, and BBCG will inform the Client as soon as it becomes aware of any changes in those laws and regulations. BBCG is not responsible for any delays or non-performance due to external factors outside of its reasonable control, including but not limited to, natural disasters, fire, any legal prohibitions, severe illness, disability, interruption of electrical supply, exceptional adverse weather conditions, or issues with third party service providers.

f.      Delays: If BBCG is delayed at any time in providing the Services or Deliverables due to any causes outside of BBCG’s control, for example, including but not limited to, Client changes, Client delay in payment, Client delay in payment to third party service providers, Client delay in providing approvals, fire, labor disputes, loss or disruption of electrical power supply, unavailable equipment or materials, unanticipated or unworkable conditions, acts of God, or any other causes beyond BBCG’s control, the completion schedule for the work or affected parts of the work shall be extended.

3.     Timeline and Approvals

a.     Commencement: BBCG will commence performance of the Program as set forth in the Project Scope & Terms as soon as all required initial payments set forth have been made.

b.     Schedule and Approvals: BBCG requires that Client designate and authorize an individual(s) to approve steps within the Project, including approval of designs, layout, content and images, or other milestones set forth in the Project Scope & Terms. BBCG will not move forward on any aspect of the Program without approval by the designated individual(s).

c.      Project Sign-Off/Milestones; As necessary, BBCG will send completed steps required for Deliverables to Client for its approval. Comments and/or approval must be provided by Client within a reasonable time so as to meet the deadlines set forth in the Project Scope & Terms. Unless otherwise specified by BBCG in writing, comments or approval must be received by BBCG within five (5) business days. No Deliverables will be released without express approval by the designated individual(s).

d.     Program Hold: Should Client choose to delay implementation of any portion of the Program, or otherwise puts the Program “on hold,” additional maintenance fees may be assessed. Any portion of the Program put “on hold” for more than 90 days may be closed, at which time payment will be due in full.

e.     Restarting Services: Client’s failure to provide comments or approve a specific step within the specified time may result in the Services being terminated, at which time payment for any Services and/or Deliverables is due in full. Restarting Services, or any steps toward the Deliverables, may result in additional charges which will be billed at standard hourly rates, as set forth on the Rate Card at Exhibit B.

f.      Deadlines: BBCG’s failure to meet any deadlines listed on the attached Project Scope & Terms will not be considered a breach of this Agreement.

4.     Program Payments

a.     Retainer, Costs and Fees: The Project Scope & Terms sets forth any retainer, costs, fees or other funds due in connection with each of the Services and Deliverables for the Program. The total costs on the Project Scope & Terms does not include any modifications requested by Client. Any Client modifications shall be charged as set forth in the above listed Paragraph 1(d).

b.     Advertising Fees and Other Costs: If the Client’s Program includes the purchase of advertisements on Facebook, LinkedIn, Google or other platforms, or image licensing fees, Client will be responsible for payment of these purchases and must pay for such fees in advance.

c.     Payments: All payments are due five (5) business days after Client’s receipt of an invoice from BBCG. Payment can be made via bank transfer or any other electronic means, e.g. Zelle, Venmo, or through the BBCG invoicing system. Checks will not be accepted.

d.     Service Charge: If payments are not received within the 5-day period, BBGC reserves the right to implement a service charge of one and one-half percent (1-1/2%) per month, which shall be charged on the amount due after thirty (30) days (eighteen percent (18%) per annum) from the invoice date.

e.     Non-payment: In the event of non-payment by the Client within sixty (60) days of the invoice date, Client hereby agrees it will pay to BBCG all costs related to the collection of the amount due, including any costs and fees related to the filing of an action for such collection (including reasonable attorneys’ fees). Interest will be charged throughout the pendency of any legal action to collect the amount due, until such amount is received by BBCG.

5.     Confidential Information & Non-Disclosure

a.     Client acknowledges and understands that:

i.     each party owns certain confidential and proprietary information crucial to its business, including trade secrets and all other information not clearly known to the public about its operations, customers, products, and business (“Confidential Information”), and

ii.     during the term of this Agreement, the Parties will have access to select portions of the other Party’s Confidential Information.

b.     Each Party agrees that it shall take reasonable measures to protect and avoid disclosure and/or unauthorized use of the Confidential Information. Without limiting the foregoing, each Party shall take at least those measures as it uses to protect its own highly confidential information. Client shall not use the Confidential Information obtained from BBCG other than for the purposes of the Program and/or Deliverables without prior written authorization by BBCG.

c.     The Confidential Information covered by this Agreement includes the following:

i.     all Intellectual Property created by BBCG, as well as all data, notes, materials, specifications, marketing plans, and other information related to the Deliverables disclosed or submitted, orally, in writing, or by any other media, to the Client from BBCG and

ii.     customer identity and other information, accounts, research, product designs, personal and business plans and objectives belonging to each of the Parties and shared with the other.

d.     Confidential Information shall not include the following:

i.     information that was publicly known or made generally available in the public domain prior to the time of disclosure;

ii.     information that becomes publicly known or made generally available in the public domain through a reasonable search;

iii.     information already in the possession of the other Party at the time of disclosure or that the other Party could reasonably have been expected to acquire in similar work with another company;

iv.     information obtained by the other Party without a breach of the obligations of confidentiality; and/or

v.     information independently created by either Party without reference to the Confidential Information.

6.     Ownership and Assignment of Intellectual Property 

a.     Client hereby acknowledges that BBCG is the sole and exclusive owner of all copyright, trademark and trade dress, in all pages, brochures, logos, designs, advertising, literature and materials, plans and strategies (“Intellectual Property”) created under this Agreement unless and until transferred to Client in writing.

b.     Prior to the transfer of rights to Client, BBCG grants Client a world-wide, revocable license to use the Intellectual Property for the purpose of implementing and executing the Program.

c.     Client acknowledges that the license to use the Intellectual Property, Deliverables and other materials from the Program, and any Retained Property (as defined below) are to be used only for this Program. Any additional use of the Intellectual Property, Deliverables, materials from the Program, and any Retained Property may be subject to additional charges and can be used only with the prior written authorization of the BBCG.

d.     BBCG retains ownership of all copyright in and to any custom programming (“Retained Property’). BBCG will allow Client full use of the Retained Property to meet the requirements set forth in the Project Scope & Terms.

e.     All pre-existing intellectual property of each Party will remain the exclusive property of that Party and, except as specifically provided in this Agreement, no Party will acquire any rights or interests in the other Party’s pre-existing intellectual property. Pre-existing intellectual property includes any and all intellectual property owned by either Party prior to the Effective Date of this Agreement.

f.      Failure to make timely payments will result in the immediate revocation of any license, express or implied, for Client to use any of the Intellectual Property.

g.     No Intellectual Property will be transferred to Client until the entire amount due and owed to BBCG is paid in full.

h.     Following the transfer of Intellectual Property rights to Client,

i.     BBCG retains the right to reproduce any Designs created for the Deliverables (“Designs”) in a portfolio and web sites for promotional and marketing purposes;

ii.     BBCG further agrees never to use any Designs as a trademark, service mark, trade name, design, or as merchandising property, and agrees never to prevent or seek to prevent Client from using Designs in such manner; and

iii.     BBCG further agrees to execute any and all documents or papers requested by Client to perfect the ownership or exploit the subject copyrights and works in the Designs.

7.     Term

a.     The obligations of each Party herein shall be effective from the Effective Date set forth above.

b.     This Agreement shall continue for a period of twelve (12) months.

c.     After the initial twelve (12) month term, the parties may agree, in writing, to extend this Agreement for another twelve (12) month term, for up to a total of three (3) years. The terms of the Agreement, including all attached exhibits, any Project Scope & Terms and Rate Cards, shall remain the same for the extended period.

d.     After three (3) years from the Effective Date, this Agreement shall terminate. The Parties must enter a new written Agreement if services are to be continued.

e.     The obligations of each Party with respect to Confidential Information shall remain in effect for a period of three (3) years from the date of the last disclosure of Confidential Information. However, the duty of confidentiality shall survive the termination of this Agreement as long as such information remains confidential. This Agreement shall be binding upon the Parties and their respective successors and assigns.

8.     Termination

a.     This Agreement may not be terminated by Client within ninety (90) days of the Effective Date. Client is responsible for paying for all Services provided, including any costs, for this period.

b.     After the first ninety (90) days of this Agreement, Client is free to discharge the BBCG with thirty (30) days prior written notice.

c.     BBCG is free to withdraw from this Agreement, for any reason, upon fifteen (15) days written notice to Client.

d.     Upon termination, all fees and charges incurred by Client to date will be immediately due and payable in full. BBCG will retain ownership of all rights to all Intellectual Property and Designs. Client may not use any Designs that may be confusingly similar to the Intellectual Property created by the BBCG, or use any of the marketing strategies without prior written approval.

e.     Any continued use of the Intellectual Property or Designs without written authorization by BBCG following the termination of this Agreement shall be considered an infringement of BBCG’s rights. Because the damage from such infringement is difficult to calculate, the Parties agree that BBCG shall assess a flat licensing fee of 3% per day of the cost for the creation of the portion of the Deliverables being used without authorization, in addition to any outstanding amounts due.

9.     Representations & Warranties

a.     Client represents and warrants to BBCG that:

i.     it has obtained any licenses, assignments or consents necessary for any materials it provides to BBCG, including content, images, logos or other designs, and

ii.     it has not received any claim, or is not otherwise aware of any infringement or misappropriation of the rights of any other person or entity regarding any content, logos or other designs.

iii.     it shall indemnify and hold the BBCG harmless from any and all claims, damages or lawsuits (including reasonable attorneys’ fees) arising out of, or due to, negligence or malfeasant acts of Client or its agents, as set forth in Paragraph 9 below

b.     BBCG represents and warrants to Client that it:

i.     it has the right to utilize and distribute the Designs created for Client and that such designs are not owned by anyone else to BBCG’s knowledge.

ii.     it will observe, and ensure that the BBCG’s team observe, all applicable rules and regulations and any other reasonable requirements that apply to the provision of Services; and

iii.     it will notify Client as soon as it becomes aware of any legal compliance hazards or issues which arise in relation to the Services.

10.  Indemnification

a.     Client will indemnify BBCG, including its officers and authorized agents, against any claims, damages, losses, liabilities and expenses of any kind due to, arising out of, or in connection, with any materials produced or furnished by Client to BBCG. Indemnification shall include, but is not limited to, all losses and damages, as well as costs, lost revenue, accounting fees and and attorneys’ fees incurred in enforcing this provision.

b.     Any losses (including but not limited to attorneys’ fees and expenses) incurred by BBCG in defending itself or any claim against the Client due to, arising out of, or in connection, with any materials produced or furnished by Client to BBCG, (the “Claim”) shall be paid by the Client in advance of the final disposition of such Claim within thirty (30) days after receipt by the Client of

i.     a statement or statements from BBCG requesting such advance or advances from time to time, and

ii.     an undertaking by or on behalf of BBCG to repay such amount or amounts, only if, and to the extent that, it shall be proven that BBCG is not entitled to be indemnified by the Client as set forth in this Agreement or otherwise. Such undertaking shall be accepted without reference to the financial ability of Client to make such repayment. Advances shall be unsecured and interest-free.

11.  Limitations of Liability

a.     BBCG shall complete Services for Client’s purposes and to Client’s specifications. BBCG does not represent or warrant that such Designs and/or Deliverables will create any additional profits, sales, exposure, brand recognition or the like. BBCG has no responsibility to Client if the Designs and/or Deliverables do not lead to Client’s desired results

b.     BBCG is not responsible for unintentional errors caused by misunderstanding or oversight. Upon discovery of such misunderstanding or oversight BBCG shall notify the Client and shall act to correct misunderstandings or oversight promptly upon discovery thereof. BBCG reserves the right to charge Client for any corrective actions.

c.     BBCG is not responsible for any delays, damage or other issues caused by edits or changes to Deliverables materials not made by BBCG.

d.     BBCG is not responsible for any delays or non-performance due to external factors outside of its reasonable control, including but not limited to, natural disasters, fire, any legal prohibitions, severe illness, disability, interruption of electrical supply, exceptional adverse weather conditions, or issues with third party service providers.

12.  General Provisions

a.     This Agreement is legal and binding between the Parties as stated above. Neither of the Parties has executed this Agreement in reliance on any promise, representation, or warranty not contained herein. This Agreement, including the attached Project Scope & Terms and Rate Card and the terms contained within, terminates and supersedes all prior understandings or agreements on the subject matter of this Agreement, including any terms set forth in a proposal or email communication. No other agreements, written or oral, shall be deemed to exist or to bind either of the Parties hereto and any and all prior agreements, understandings, and representations are superseded hereby. This Agreement may be modified only by a further writing that is duly executed by both parties. Any new Project Scope & Terms provided by BBCG will replace the prior Project Scope & Terms, and become a part of this Agreement.

b.     The various paragraph headings are inserted for reference convenience only, and shall not affect the meaning or interpretation of this Agreement or any paragraph.

c.     This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together constitute one and the same document.

d.     BBCG is an independent contractor and no other relationship is created between the parties, including but not limited to, that of agent, employee, partner or joint venturer of Client. BBCG has sole control and discretion regarding the provision of the Services. Nothing contained herein shall be construed as granting or conferring any rights, by implied or express license or otherwise, in any Confidential Information or Intellectual Property.

e.     This Agreement shall be governed and construed in accordance with the laws of the United States and the Commonwealth of Pennsylvania. Each Party consents to the exclusive jurisdiction of the state courts and U.S. federal courts located in Pennsylvania for any dispute arising out of this Agreement.

f.      In the event of a dispute resulting in legal action, the successful party will be entitled to its costs and legal fees, including, but not limited to its attorneys’ fees required to bring the action.

g.     If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

h.     Neither Party may assign this Agreement or any rights arising out of this Agreement, in whole or in part, without the other Party’s express prior written consent.

i.     Neither Party shall solicit, approach or hire any of the other’s contractors or employees for the purpose of employment so long as this Agreement is in effect and for a period of one (1) year thereafter, except with the written consent of the other party.

Each of the Parties acknowledges that it has carefully read and understands this Agreement, it has had the opportunity to obtain the advice of its own counsel in connection with entering into this Agreement, and that the person executing this Agreement on its behalf has the full right and authority to bind it and its Affiliates.