Swell Terms & Conditions

1. Appointment.
Agency is herein appointed by you (“Advertiser”) as its marketing communications and advertising consultant pursuant to the terms of this agreement (“Agreement”) and any Cost Estimate agreed to by Advertiser, which shall incorporate the terms of this Agreement by reference. Cost Estimate as referenced in this Agreement is any document signed by Advertiser that authorizes Agency to commence work on your behalf.

2. Term.
This Agreement begins on the date that a Cost Estimate is signed by Advertiser or on the date that Agency commences work on Advertiser’s behalf, whichever is earlier, and will continue in full force and effect until either Agency or Advertiser provides written notice of termination as set forth in Section 5 of this Agreement.

3. Scope of Work.
During the term, Agency shall provide Advertiser with marketing communications and advertising consulting services for a mutually agreed upon price as set forth in the Cost Estimate. In addition to the terms set forth in this Agreement, any terms set forth in a Cost Estimate that is signed by Advertiser shall be incorporated into this Agreement.

4. Client Authorizations; Payment.
Before commencing any work on behalf of Advertiser, Agency shall obtain Advertiser’s approval. Advertiser acknowledges that its failure to timely authorize Cost Estimates and price quotes will prevent Agency from starting work and could result in missed deadlines. If possible, approvals will be in writing (including email), but approvals can be oral with prompt written confirmation. Approval of a Cost Estimate or price quote by Advertiser will constitute approval of the costs and charges included in it. Cost Estimates are deemed to be firm fixed price and will remain the same unless (a) the parties agree to a material change in scope in which case Agency will present a new Cost Estimate for Advertiser’s approval, or (b) alternative terms are specified within the relevant Cost Estimate. Advertiser will pay all invoices within thirty (30) days from the date the invoice was issued, unless the parties agree otherwise in writing. Notwithstanding the foregoing, Agency may require Advertiser to advance certain third-party expenses by providing written notice to Advertiser thereof; Agency will not be in breach of this Agreement for failing to advance any such expenses on Advertiser’s behalf.

Agency reserves the right to charge interest at the lesser rate of (i) one percent (1%) per month, or (ii) the maximum legal interest rate per month on the outstanding balance of all receivables over thirty (30) days past due; provided, however, Agency has given Advertiser notice of the amount in arrears and Advertiser fails to make full payment within an additional five (5) business days from the date of the letter containing the notice. Advertiser will be liable for all reasonable collection and attorneys’ fees arising out of Advertiser’s failure to remit full payment. Agency, in its sole discretion, upon 5 days’ notice and at any time, reserves the right, in case 1) credit insurers decline coverage, or revise or withdraw coverage on Advertiser or 2) Advertiser’s credit rating (through Euler Hermes, S&P, or other source) adversely changes, to change the requirements as to terms of payment under this Agreement (including the right to require payment in advance) for Agency’s fee and third party costs.

In connection with its performance of Services hereunder, Agency may purchase materials and services for Advertiser as an agent for a disclosed principal under the principle of sequential liability, where Agency will be held liable for payments to vendors and suppliers only to the extent Agency has been paid by Advertiser for such purchases. For amounts owing but not paid to Agency, Advertiser agrees that it will be held solely liable.

5. Termination.
A. Either party may terminate this Agreement (or terminate or reduce a Cost Estimate) by giving not less than sixty (60) day prior written notice of termination. If this Agreement or a Cost Estimate is terminated or reduced by Advertiser pursuant to the notice set forth herein, Advertiser agrees to pay the monthly fee as set forth in any Cost Estimate(s) during the sixty (60) day termination notice. Should Advertiser terminate or reduce a Cost Estimate that does not require payment of a monthly fee, Advertiser shall pay Agency for all services to be rendered pursuant to the applicable Cost Estimate(s) during such sixty (60) day notice period, regardless of the level of services requested by Advertiser during said notice period.

B. Any third-party contracts that cannot be cancelled and are still existing at the termination of this Agreement, shall be assigned to Advertiser or Advertiser’s representative and Agency will be released from any related obligations. Any materials or services Agency has committed to purchase for Advertiser (or any work performed but uncompleted and previously approved by Advertiser either specifically or as part of a plan), shall be paid for by Advertiser and Agency shall receive applicable compensation. Advertiser shall indemnify Agency against any expense or loss Agency may incur as a result of a claim by such third party arising after the assignment of said contract.

C. Upon termination of this Agreement and upon receipt of final payment of all amounts owed by Advertiser under this Agreement, Agency will transfer, assign and make available to Advertiser or its representative all property and materials in its possession or control belonging to and paid for by Advertiser. Agency also will reasonably cooperate in transferring to you, with the approval of third parties in interest and after being released from all obligations relating to the same, all reservations, contracts and arrangements with others for services and materials yet to be used. Upon termination of this Agreement for any reason, neither party will make an announcement or release of any kind to the press or other news media without the written consent of the other.

6. Ownership.
All advertising materials prepared for Advertiser, including but not limited to any databases of information, specialized database applications, software applications, computer programming and/or coding developed by or for Agency shall be owned by Agency and shall be Agency’s sole and exclusive property. Additionally, Agency retains all of its rights, title and interest in and to (i) all materials owned by or licensed to Agency prior to, or independent from, the performance of services under this Agreement, and all modifications thereof, and (ii) all generic or proprietary information, ideas, methodologies, software, applications, processes or procedures used, created or developed by Agency in the general conduct of its business. It is understood that there are certain limitations which limit the use and ownership of the materials utilized in the advertising materials prepared by Agency under this Agreement, and Advertiser’s use of such materials shall be subject to such limitations. Agency shall disclose to Advertiser in writing any such limitations and Advertiser agrees to comply with all such limitations. Advertising materials created pursuant to this Agreement are intended for use in the territory set forth in the applicable Cost Estimate or as otherwise disclosed to Advertiser by Agency. If Advertiser uses any such materials outside the applicable territory or use limitations, Advertiser shall be responsible for any claims that may be made against Advertiser or Agency with respect to such uses.

7. Indemnification.
A. Advertiser shall be responsible for the accuracy, completeness and propriety of information concerning Advertiser’s organization, products, services, claims, offers and Advertiser’s competitors’ products and services and for the rights, licenses and permissions to use, and for the accuracy and propriety of, material furnished to Agency by Advertiser or on Advertiser’s behalf in the performance of this Agreement. Advertiser will indemnify, defend and hold Agency harmless from any damages, loss, cost, claim or liability (including reasonable out of pocket legal fees and costs of enforcing this indemnity) arising out of: (i) Advertiser’s negligence, willful misconduct, or breach of its representations or warranties set forth in this Agreement, (ii) any materials, products or services provided by Advertiser, (iii) Advertiser’s modification or use of the services or advertising materials contrary to the agreed upon terms, (iv) risks which Agency has brought to Advertiser‘s attention in writing where Advertiser has elected to proceed, and (v) any third-party investigation of the acts or practices of Advertiser to which Agency is not a named party, including compliance with any third party subpoena or discovery request.

B. Agency will indemnify, defend and hold Advertiser harmless from any damages, loss, cost, claim or liability (including reasonable out of pocket legal fees and costs of enforcing this indemnity) arising out of: (i) Agency breach of this Agreement, (ii) Agency’s negligence or willful misconduct in the performance of Agency’s obligations hereunder; and (iii) Agency’s breach of its representations or warranties under this Agreement.

C. Upon the assertion of any claim or the commencement of any suit or proceeding against one party hereto by any third party that may give rise to another’s indemnification liability under this Agreement, the party seeking indemnification shall promptly notify the other party and provide the other party reasonable assistance and opportunity to defend and/or settle the claim at its own expense and with counsel of its own selection. A party seeking indemnification from the other with respect to a suit or proceeding or claim will not settle the same without the prior written consent of the other party. These indemnity provisions shall continue to apply if this Agreement is terminated.

D. Neither party nor its officers, employees, agents, or partners shall be liable to the other, or to any other party, for indirect, incidental, consequential, special or exemplary damages arising in any manner from the activities contemplated by this agreement, whether under contract, tort or any other cause of action, even if that party has been advised of the possibility of such damages, such as, but not limited to, loss of revenue or anticipated profits or lost business. Agency’s total, aggregate liability for all claims arising in connection with this agreement shall not exceed the total payments received and retained by the agency under this agreement as agency’s fee and agency’s total liability for any specific claim shall not exceed the payments received and retained by agency as its fee for the deliverables or services with respect to which the claim is made.

8. Cooperation / Approvals.
The parties acknowledge that the successful and timely rendering of the services provided hereunder, as well as the successful development of the advertising materials will require mutual cooperation. Accordingly, Advertiser agrees to (a) provide Agency with all information (including substantiation of claims) reasonably required to assist Agency’s performance of the services; (b) make available to Agency at least one employee or consultant of Advertiser’s who shall have substantial relevant experience, to act as Advertiser’s contact in connection with the development of the advertising materials and (c) provide prompt review of and response to materials submitted by Agency for Advertiser’s review.

Advertiser acknowledges that Agency has no control over information and materials once they have been published, released, or posted in the public domain or on the internet as requested or approved by Advertiser, including, without limitation, on social networking and video sharing websites. As such, Agency shall not be responsible for ensuring the accuracy of what any third party publishes or any other resulting third-party actions including without limitation, postings, feedback, tweets, or other similar user-generated or third-party content, privacy, or other disclosures. Further, Advertiser will be responsible for removing from air or publication all advertising that is not in compliance with the applicable terms and/or limitations.

9. Performance of Suppliers.
Agency will endeavor to guard against loss or damage to Advertiser through failure of suppliers and subcontractors to fulfill their commitments but will not be responsible for any such failures on their part.

10. Confidentiality.
Each party who receives (the “Recipient”) proprietary or confidential information (“Confidential Information”) supplied by the other (the “Discloser”) shall take reasonable steps to ensure that such Confidential Information is not disclosed to any person, firm or corporation, or used without the advance written permission of the Discloser. Agency Confidential Information shall include, without limitation, proprietary business tools, financial information (or any other information regarding Agency learned as a result of any audit), pricing or incentive offers, marketing plans or materials, the terms of this Agreement and the rates Agency obtains from media vendors and other suppliers. Confidential Information does not include information known to the Recipient prior to disclosure by the Discloser; information that is publicly known; or, information available from or disclosed by a third party not bound in a confidential relationship with the Discloser The Recipient shall inform the Discloser of all requests for or inquiries into the Recipient’s Confidential Information by third parties and shall only provide same when legally compelled to do so after notice to the Discloser In the course of performing the services required of the Recipient hereunder, the Recipient may disclose Confidential Information as the Discloser shall have approved for disclosure.

Where Advertiser has provided information, representations, data, reports and/or other materials to Agency for use in the Services, Advertiser warrants that it is entitled to do so. If Advertiser provides data to Agency, such data must have been processed in a manner that complies in all material respects with all applicable data privacy laws, self-regulatory principles, and Advertiser’s privacy policy and public statements. Advertiser shall, prior to transferring data to Agency, specifically identify the types of data and obtain written consent from Agency to transfer the data to Agency. If Advertiser provides data collected online to Agency, such data must have been collected using HTTP cookies or technology disclosed in Advertiser’s privacy policy that allows for the same level of transparency and control as is currently available for standard HTTP cookies.

11. Other Agreements.
Advertiser acknowledges that production and use of commercial materials produced on its behalf could become subject to the terms and conditions of other agreements governing the hiring and use of performers, including but not limited to the SAG or AFTRA Commercials Contracts. Advertiser agrees to pay for all amounts due under such other agreements, including but not limited to union agreements, with respect to material produced and/or used on its behalf and to indemnify, defend and hold harmless Agency from any claims asserted under such other agreements in connection with the production and/or use of such material, whether such claims arise or are asserted during or after the term of this Agreement.

12. Taxes.
Advertiser will be responsible for all applicable taxes which may become due, assessed, or measured by the performance of Agency under this Agreement, regardless of the party upon whom the obligation is imposed, and Advertiser will indemnify, defend and hold harmless Agency and/or any commercial producer against all costs and expenses (including but not limited to reasonable attorneys’ fees, taxes, penalties, interest and fines) incurred as a result of Advertiser’s failure to pay any tax when due.

13. Amendment and Waiver.
This Agreement constitutes the entire understanding between the parties and it may not be altered or waived except by a written agreement signed by authorized representatives of each party. No waiver by any party of any breach of this Agreement will constitute a waiver of or consent to any subsequent breach of this Agreement.

14. Force Majeure
Neither party shall be liable for any failure or delay in performance under this agreement, (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party’s reasonable control and occurring without its fault or negligence, including without limitation. The party experiencing the difficulty shall give the other prompt written notice.

15. Arbitration and Applicable Law.
The sole remedy for the resolution of disputes under this Agreement will be arbitration before one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, such arbitration to be held in Denver, CO. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. In resolving any dispute under or construing any provision of this Agreement, no presumptions, inferences, or effect will be made relating to which party was responsible for its drafting or because of its drafting history or with reference to the heading of the various sections and subsections, which are for reference only. If any provision of this Agreement is construed to be invalid, illegal, or unenforceable, the remaining provisions shall not be affected and will be fully enforced. In the event that any action or proceeding is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. In resolving any dispute or construing any provision hereunder, no presumptions shall be made or inferences drawn because the attorneys for one of the parties drafted this Agreement, because of the drafting history of this Agreement, or because of the inclusion of a provision not contained in a prior draft or the deletion of a provision contained in a prior draft of this Agreement. If any provision of this Agreement is construed to be invalid, illegal or unenforceable, then the remaining provisions shall not be affected thereby and shall be enforceable without regard thereto.

16. Compliance with Laws.
Each party will comply with all applicable laws and regulations in connection with activities under this Agreement and represents that there are no agreements that prohibit or restrict it from entering into this Agreement.

17. Waiver.
Any waiver of either party’s rights hereunder must be in writing. No waiver by either party of any breach or default of any of the provisions contained in this Agreement and required to be performed by the other party shall be construed as a waiver of any succeeding breach of the same or of any other provision.

18. Notices.
All notices that are required or permitted under this Agreement will be given by registered mail or by personal delivery. Such notices will be considered as being given on the date of receipt.

19. Entire Agreement.
This Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior proposals, oral or written, all previous negotiations and all other communications and understandings with respect to the subject matter hereof. This Agreement shall not be amended or modified in any manner except by an instrument signed by the authorized representatives of both parties

Swell Agency

Marissa Vacek

Managing Director, Swell, a PSA Agency

Phone: 303.920.7612   |   Email: mvacek@psasecurity.com