Creative Agreement

Marketing Gold, Inc. Creative Agreement This Agreement (“Agreement”) is made and entered into as of the order or hiring date, whichever is earlier  (the “Effective Date”) by and between the service provider, Marketing Gold, Inc., (“Marketing Gold” and/or “Provider”), a Corporation having a place of business at 314 Willowwood Dr., Dayton, Ohio, 45405 and the (“Client”) for a term of 12 (twelve) months.
1. Services. Marketing Gold agrees to provide marketing, public relations, and/or copywriting services (the “Work”) at the request of Client for fees agreed upon in advance and to deliver the Work by an agreed-upon deadline. 1.1 Specific services to be provided, fees, payment schedules, deliverables and delivery deadlines will be detailed in a written document, such as a project proposal, creative brief or work plan, (the “Plan”) for each project on which Marketing Gold has been retained. All such Plans are incorporated herein by reference.
2. Source Material. Marketing Gold agrees to create Work on behalf of Client using information supplied to Marketing Gold by Client including, but not limited to, creative briefs, work plans, project descriptions, market research, marketing collateral, graphic and/or design standards, copywriting standards, strategic plans, competitive analyses and other source material/background information. Client warrants that it is legally authorized to share such source material with Marketing Gold, and that Marketing Gold is legally authorized to derive Work from such source material. 
3. Work Product. Marketing Gold shall make a reasonable effort to ensure the accuracy of the Work Product, based on the source material and Plan provided to Marketing Gold by Client. Client acknowledges and agrees that Client is responsible for ensuring that the Work does not infringe upon any copyright, right of privacy, proprietary right, right of publicity or any other right of a third party; that all facts and statements in the Work are accurate and truthful; and that the Work is grammatically and stylistically correct. 3.1 Client agrees to indemnify and hold Marketing Gold harmless for, from and against any and all losses, claims, damages, liabilities or actions related to or arising out of this engagement (except to the extent such loss, claim, damage, liability or action arises as a result of the gross negligence or willful misconduct of Marketing Gold). 3.2 Unless otherwise agreed to in advance, Marketing Gold does not include third-party proofreading services in the scope of work. Client is strongly encouraged to proofread the Work prior to publication. 
4. Revisions. Marketing Gold shall make every reasonable effort to ensure that the Work is created pursuant to the Work Plan, and meets and exceeds Client’s stated requirements. 4.1 To ensure Client’s 100% total satisfaction, Marketing Gold will complete up to three drafts of the Work as part of the project fee. 4.2 Should Client publicly distribute, disseminate, display, publish (either online or off) or otherwise utilize any draft of the Work, that draft will be considered the final draft and no further revisions will be provided as part of the project fee. Only one final draft will be delivered per project fee, unless specified otherwise in the Work Plan.
5. Delivery schedule. Marketing Gold shall make a reasonable effort to deliver the Work on or before the delivery date indicated in the Plan. 5.1 Timely delivery of the Work is wholly dependent upon Marketing Gold receiving the information and materials necessary to create the Work (source material as described in Section 2) from the Client in a timely manner. Unless stated otherwise in the Plan, Client shall deliver all necessary source material to the Marketing Gold immediately upon execution of this agreement. 5.2 In the event that all necessary source material is not provided to the Marketing Gold in a timely manner, then delivery dates are automatically extended by the number of full business days by which the Client materials are overdue. 5.3 Client review and approval time is not included in the delivery schedule. Delivery dates are automatically extended by the number of business days the Client takes to review, revise, and/or approve the Work. 5.4 In the event the Marketing Gold becomes unable to deliver the Work on the completion date because of events outside the control of the Marketing Gold, or If the Client, after the execution of this agreement, requests changes in the scope of work or creates the necessity for overages, then the Marketing Gold shall give reasonable assurance of the new completion date and shall fix such date on a reasonable basis. 5.5 In the event the Client requests additional work product that was not included in the original Plan, or requests changes that go beyond a revision of work and constitute a new creative direction, Marketing Gold and Client shall execute a Change Order form that describes the additional work product, additional fee, and delivery date for such work product. Any such Change Order is incorporated herein by reference. (A sample Change Order form is appended to the last page of this Agreement for your convenience.)
6. Intellectual Property Rights. Upon payment in full, all concepts completed to final draft stage pursuant to the Plan are considered “Work for Hire.” 6.1 Unless otherwise indicated in the Work Plan and included in the project fee, Marketing Gold shall retain exclusive ownership of any and all rejected campaign, design and/or copywriting concepts that it is not hired to fully execute to “final draft” stage.6.2 Portfolio. Unless indicated otherwise in the Plan, Client grants Marketing Gold the right to reproduce electronic or paper copies, representations, images, and/or descriptions of the Work and/or intermediate drafts of the Work in Marketing Gold’s electronic or paper portfolio after such time as the Work has been released to the public and/or is no longer considered confidential and/or proprietary. Client shall notify Marketing Gold of the date that the Work is released to the public and/or is no longer considered confidential and/or proprietary, whichever is earlier.
7. Term. The term of this Agreement shall commence as of the Effective Date and shall expire as of 11:59 p.m. Eastern U.S. time of the last day of the period wherein Marketing Gold was retained by Client, even if Client retained Marketing Gold on an intermittent, part-time, or project basis. The provisions of Sections 1, 2, 3, 4 and 6 and 8 shall survive the termination of this Agreement for any reason.
8. Confidentiality. Marketing Gold and Client acknowledge that each may provide access to information which relates to past, present or future products, vendor lists, creative works, marketing strategies, pending projects and proposals, and other proprietary information which gives Marketing Gold and/or Client an opportunity to acquire an advantage over their respective competitors who do not know or use it (the “Proprietary Information”). Marketing Gold and Client agree to preserve and protect the confidentiality of the Proprietary Information and all electronic and/or physical forms thereof. In addition, except in the normal course of providing the Services, neither party shall disclose or disseminate the Proprietary Information to any third party without written authorization and shall not use the Proprietary Information for his or her own benefit or for the benefit of any third party. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.
9. Fees. the contract price, unless modified in writing by the parties, consists of the Project Fee estimate provided on the invoice or estimate to Client by Marketing Gold and the remainder of the cost. 9.1 “Remainder of the cost” is defined as project fee plus additional expenses paid on behalf of the Client by Marketing Gold, additional services and/or work product requested by the Client and priced separately, plus overage that the Client has incurred minus any payment(s) already made. 9.2 “Overage” is defined as time spent on new elements or requirements introduced into the project by the Client during the development and/or revision periods and/or after completion of the project that have not been estimated in the Project Fee as part of the original project. Marketing Gold shall state an estimated overage fee on the Change Order when possible. 9.3 Retainer fees. Retainer fees are payable in advance and are non-refundable. Retainer hours that are not used prior to the end of a billing period do not carry over into the next period. 9.4. Cancellation. In the event that Client chooses to cancel a project that is billed on an hourly basis, Client shall be billed for actual hours reserved exclusively for client for and/or applied toward the project. 9.5 In the case of projects that are billed on a flat fee basis, and cancelled prior to start of work, the total project fee shall be retained by Marketing Gold to be applied toward Marketing Gold project fees for a future project for Client. 9.6 In the case of projects that are billed on a flat fee basis, and cancelled after the start of work, the total project fee available to apply toward a future Marketing Gold project fee shall be reduced on a pro-rata percentage basis as determined by Marketing Gold, depending upon the efforts already expended by and on behalf of Marketing Gold toward the project. 9.7 The right to any bonus items included with the Work is rescinded upon cancellation unless otherwise specified. 9.8 In the case of subscription-based products and/or services, either party may cancel with a minimum of one billing period’s notice or no less than 30 days, whichever is longer.
10. Business Terms. If the parties have agreed to payment on a project basis, as opposed to an hourly basis, payment in full is due prior to start of work on projects billed at $10,000 or less. On projects billed at $10,001 or more, a non-refundable deposit of at least 50% of the project fee is required upon signing of this agreement. 10.1 Unless otherwise agreed, on projects priced at $10,001 or more a second payment of 50% of the Project Fee plus any options and overage incurred prior thereto is due and payable on the delivery date of the Work. “Business days” include weekdays, and exclude U.S. Federal holidays, Christmas Eve, and New Year’s Eve.10.2 If Marketing Gold is to deliver the Work 20 business days or more from the date of this agreement, Marketing Gold will progress-bill for the Work based on the Marketing Gold’s completion of project milestones as described in the Plan. The balance of all Project Fees plus any approved options added and overage incurred prior thereto will be invoiced prior to delivery of the final draft of the Work by the Marketing Gold to the Client.10.3 Royalties, commissions, bonuses, residuals, or other payments shall be paid as described in the Plan.10.4 If the parties have agreed to payment on an hourly basis, Marketing Gold shall provide Client with invoices on a weekly basis or at a frequency agreed to in advance by both parties.
11. Payment. All prices are quoted in United States Dollars.11.1 Marketing Gold, Inc. shall be entitled to reasonable legal fees in the event the services of an attorney are necessary for collection.11.2 Visa, MasterCard, and Discover credit cards are accepted via and Stripe.11.3 Unless otherwise stated in the Plan, all invoices are due upon receipt. Late fees shall accrue at the rate of 1.5% per day.
12. Earnings Disclaimer. Marketing Gold, Inc. relies on our experience, industry knowledge and current best practices as we understand them to get the best possible results for our clients. However, because the variables that impact marketing and public relations results are so numerous, and may include many factors outside of our control and the Clients’ control, Marketing Gold makes no guarantees as to the results or earnings Client may experience from use of the Work.
13. General ProvisionsMarketing Gold is responsible for the payment of all federal, state and /or local taxes with respect to the services it performs for Client. Client shall not treat Marketing Gold as an employee for any purpose.13.1 No modification to this Agreement shall be binding unless made in writing and signed by the parties hereto. 13.2 Client changes to the Scope of Work and/or Work Plan must be made in writing, using the Change Order form appended to this Agreement. Client acknowledges that changes to the Scope of Work are likely to delay completion of the project, and agrees to hold Provider harmless from such delays. Client also acknowledges that changes to the Scope of Work may incur additional costs or fees, which must be paid prior to the Provider’s resuming work on the project per the amended Scope of Work.13.3. To the extent that any provisions, portion or extent of this Agreement is found invalid, illegal or unenforceable, then that provision, portion or extent shall be severed or deleted or limited so as to give effect to the intent of the parties insofar as possible and that the remainder of the Agreement shall remain binding upon the parties.13.4 Unless otherwise agreed, this Agreement shall apply to all Work and deliverables created by Marketing Gold for Client during the term of this Agreement.13.5 The failure of Marketing Gold to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. 13.6 The laws of the State of Ohio without giving effect to principles of conflicts of law shall govern this Agreement. Any claim for a violation of this Agreement shall be brought in Ohio federal or Ohio state or municipal court and the parties hereby irrevocably consent to the jurisdiction of those courts. Attorneys’ fees in any legal action shall be awarded to the prevailing party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.