Terms and Conditions
These Terms and Conditions when incorporated into an insertion order, represents the parties’ common understanding for doing business. This Agreement (“Agreement”) is between Associations, Inc. dba Associa, a Texas corporation, with its principal offices at 5401 North Central Expressway, Suite 300, Dallas, Texas, 75205 (“CHM”), and Advertiser (“Client”). CHM provides data‑driven marketing and advertising services. Client desires to obtain, and CHM agrees to provide, such services in accordance with this Agreement.
1. Scope of Services.
1.1 Statements of Work. In accordance with the terms of this Agreement and one or more mutually agreed statements of work (each, a “Statement of Work” or “SOW”), CHM will provide to Client, and Client will purchase from CHM, the services as described in each SOW (“Services”) and the items, writings, outputs or works that are specifically defined or identified by each SOW (the “Deliverables”). From time to time during the Term, the parties may mutually identify additional Services or Deliverables not covered by an existing SOW, and those additional Services and Deliverables will be described in a Change Order to an existing SOW or in a new SOW. No SOW will be binding on the parties unless signed by an authorized representative of each party, at which time that SOW will be incorporated into and made part of this Agreement. Each SOW will be uniquely identified by an SOW name and date.
1.2 Order of Precedence. The Agreement, including each SOW, is to be interpreted as a single agreement so that all of the provisions are given as full an effect as possible. If any term of the body of this Agreement directly conflicts with those of any SOW, any attachment to this Agreement, or any other document incorporated by reference into this Agreement, the order of precedence is as follows (items with a lower number having priority over, and controlling in the event of a conflict with, items having a higher number): (1) the body of this Agreement; (2) the SOW, including any Media Plan, any Insertion Order, or any other attachments incorporated therein (but only with respect to Services to be performed under that SOW); and (3) any other attachments incorporated into this Agreement.
1.3 Provision of Services. Except as otherwise specified in an SOW, CHM will determine the method, details, and means of performing Services. Client will assign a “Client Representative” to interact with CHM’s "CHM Representative" assigned by CHM, to support each party’s performance under this Agreement. Such representatives will be made known in writing to the other party. Each party’s representative may also interact with representatives of partner agencies and other third parties that CHM retains in connection with this Agreement.
1.4 Change Orders. Client may request modifications that reasonably relate to the scope of Services or Deliverables under an SOW (a “Change”) by delivering a written request to CHM specifying the desired Change. CHM has discretion to consider Changes, and if CHM elects to pursue the requested Change, CHM will submit a proposed written change order to Client (“Change Order”) specifying the Change (including any associated changes to the Fees and the schedule for performance and delivery of the Services and Deliverables). The parties will cooperate with each other in good faith in discussing the scope and nature of the proposed Change Order, the availability of CHM personnel, expertise and resources to perform the Change Order, and the time period in which the Change Order will be implemented. Neither party is obligated to proceed with any Change unless and until it is reflected in a Change Order that is mutually executed by an authorized representative of each party. Change Orders executed by both parties are deemed to be incorporated into this Agreement. For clarification purposes, phone conversations and email exchanges between the parties’ representatives do not constitute a Change Order and are not official documentation of any change in the scope of Services, Deliverables, or other terms set forth in an SOW.
1.5 Client Responsibilities. Client will: (A) provide CHM, in a timely fashion, with all information reasonably required by CHM related to the Services; (B) provide CHM, at no charge, with the resources, consents, licenses, sublicenses, software, equipment, and access to Client’s facilities as reasonably necessary to permit CHM to provide the Services, and that are not otherwise identified in the applicable SOW as CHM’ responsibility; (C) make appropriate Client personnel available for meetings and cooperative activities; and (D) perform its responsibilities as described in this Agreement, including those set forth in the applicable SOW. CHM will not be liable for any delay in performance of the Services or any breach of the Agreement or the relevant SOW to the extent the delay or breach results from, or is attributable to, delay on the part of Client in performing its obligations under this Section 1.5.
1.6 External Materials. CHM’s obligations under this Agreement are not contingent upon conformity of third-party materials or services not provided by CHM (“Third-Party Materials”) or Client’s Pre-Existing IP (together, Third-Party materials and Client’s Pre-Existing IP are “External Materials”). For example, Client may not withhold payment for Services or any Deliverable due to delays or shortcomings of third parties or External Materials, even if the External Materials are required for Client to use Deliverables or receive the benefit of the Services. CHM’s sole obligation with respect to any deficiency or defect in External Materials is to promptly report any issues to Client.]
2. Intellectual Property.
2.1 Pre-Existing Intellectual Property. Each party shall retain all rights, title, and interest in and to its Pre-Existing IP and all Intellectual Property Rights therein. “Pre-Existing IP” consists of a party’s information, data, technology, and or other materials, including ideas, know-how, inventions, approaches, software, designs, logos, trademarks, concepts, techniques, processes, data, tools, templates, methodologies, algorithms, documentation and any other knowledge or Intellectual Property, that (A) exists prior to the Effective Date, or (B) is developed entirely independently by a party, at any time, without any use of, or reference to, the other party’s Confidential Information or other information obtained in connection with this Agreement. “Intellectual Property” means any and all patents, patent registrations, patent applications, business processes, copyrights, data rights, trademarks, trade names, service marks, service names, trade secrets, mask works, moral rights, know-how or any other similar right arising or enforceable under the laws of any country or international treaty regime. CHM has the right to use Client’s Pre-Existing IP provided to CHM in connection with the Services under this Agreement.
2.2 License to Client Materials. Client hereby grants to CHM a non-exclusive, non-sublicensable (except in accordance with this Agreement), non-transferable, royalty-free, worldwide license to reproduce, prepare derivative works based upon, distribute, publicly perform, publicly display, adapt, modify, and otherwise use Client’s Pre-Existing IP provided to CHM in connection with CHM’s, its affiliates’, and its contractors’ performance of the Services. For clarity, CHM may allow its affiliates, personnel, and contractors to use such Client Pre-Existing IP in connection with performance of the Services. To the extent that such Client Pre-Existing IP includes Client trademarks, CHM will use reasonable efforts to comply with Client’s generally applicable written policies and guidelines, provided to CHM as of the Effective Date, applicable to the use of such trademarks.
2.3 Rights to Deliverables. All Deliverables that are works of authorship will, to the extent possible, be deemed “works made for hire” and, as between CHM and Client, Client will own, and CHM hereby assigns to Client upon payment of all associated Fees, all of CHM’ right, title and interest in and to those works (excluding any included Pre-Existing IP of CHM). CHM retains the right to keep copies of any and all Deliverables and use them for its internal purposes.
3.1 Invoicing and Payment. Client will pay CHM the fees set forth in each SOW for the Services and Deliverables specified in the SOW (“Fees”). CHM will deliver invoices to Client at the address set forth in the signature block. Client will pay CHM the Fees within 30 days of Client’s receipt of each invoice. After such time period has elapsed, all unpaid Fees will accrue interest at the lesser of 12% per annum and the maximum lawful rate, from the due date until paid. As set forth in the applicable SOW, CHM may require payment of all Fees prior to beginning performance of the Services, including if CHM determines such payment terms are necessary based on applicable credit history. Client is responsible for sales, use, excise, value-added, services, consumption and other similar taxes that are assessed on Services, Deliverables or Fees.
3.2 Expenses. Unless otherwise set forth in the SOW, Client will reimburse CHM for its actual and reasonable travel, lodging, meals, related incidental and other out-of-pocket expenses incurred directly in connection with the Services.
4. Term and Termination.
4.1 Term. The term of this Agreement begins on the Effective Date and, unless earlier terminated in accordance with Section 4.2, expires one year after the completion of Services under the last Statement of Work (the “Term”).
4.2 Termination. Either party may terminate this Agreement or any Statement of Work if the other party breaches a material provision of this Agreement or the applicable Statement of Work and has not (A) cured the breach within 30 days after receipt of written notice of the breach or (B) made substantial progress to cure the breach (if it is curable) and implemented a plan that results in a cure of the breach within 45 days. Termination of this Agreement terminates all Statements of Work then in progress effective as of the date notice of termination is provided.
4.3 Effect of Termination. Upon termination of the Agreement or any SOW, CHM will promptly cease providing the affected Services. Termination of this Agreement or any SOW will not affect Client’s obligation to pay to CHM amounts due prior to termination. CHM will submit an invoice to Client for Fees due for Services performed prior to the date of termination (including pro-rata payment for Services rendered as of the date of termination, even if payment for such Services was not then due). Within seven days after CHM’s receipt of Client’s payment of the final invoice under the applicable SOW, CHM shall deliver to Client all Deliverables then in progress under that SOW.
5.1 Confidential Information. “Confidential Information” means any of the disclosing party’s confidential or proprietary information that is disclosed in any manner to the receiving party and that, at the time of disclosure, either (A) is marked as being “confidential” or “proprietary,” (B) is otherwise reasonably identifiable as confidential or proprietary information, or (C) under the circumstances of disclosure, should reasonably be considered as confidential or proprietary. Confidential Information includes the terms of this Agreement including each SOW, each party’s Pre-Existing IP and all types of non-public proprietary technical or business information, including data, algorithms, methodologies, strategies, specifications, reports, pricing, marketing information, software, Intellectual Property and other types of nonpublic information. Confidential Information does not include information that (1) is or becomes public without breach of this Agreement through no fault of the receiving party, (2) was lawfully and demonstrably in the receiving party’s possession prior to receipt from the disclosing party, (3) was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information, as evidenced by the receiving party’s written records, or (4) was received from a third party without any restrictions on disclosure and without breach of a nondisclosure obligation. A party’s Confidential Information is its property, and unless otherwise stated, the receiving party obtains no right, title, interest or license in or to the disclosing party’s Confidential Information.
5.2 Duty of Confidentiality. Each party will use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care in light of general industry standards and applicable laws regarding data protection, privacy or confidentiality. In addition, each party shall (A) hold in confidence the disclosing party’s Confidential Information; (B) use the disclosing party’s Confidential Information only to perform its obligations or exercise its rights under this Agreement; and (C) not transfer, display, convey or otherwise disclose or make available the disclosing party’s Confidential Information to any person or entity except to the receiving party’s directors, officers, employees, agents, contractors, accountants, auditors, and legal and financial advisors who need to know that Confidential Information, are under confidentiality obligations substantially similar to the terms in this Agreement, and whose handling and treatment of the disclosing party’s Confidential Information is the receiving party’s responsibility.
5.3 Permitted Disclosure. The receiving party may disclose the disclosing party’s Confidential Information in response to a valid court order, law, rule, regulation, or other governmental action, provided that (A) the disclosing party is notified in writing prior to disclosure of the information and given reasonable opportunity to obtain a protective order, and (B) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt to limit or prevent the disclosure of the disclosing party’s Confidential Information.
5.4 Return of Confidential Information. Upon termination or expiration of this Agreement or the disclosing party’s earlier request, subject to the licenses granted by CHM, the receiving party will, at its own expense, return the disclosing party’s Confidential Information and cease all use of that Confidential Information, except that CHM may retain copies of the Deliverables for archival purposes, and each party has a right to maintain copies of any and all Confidential Information that is the subject of a dispute between the parties until such dispute is resolved. Upon resolution of the dispute, each party will return or destroy the disclosing party’s Confidential Information in accordance with this Section 5.4.
6.1 Warranties. Each party represents and warrants that it has the right to execute and perform its obligations under this Agreement. CHM represents and warrants to Client that CHM will perform the Services and provide Deliverables in a professional and workmanlike manner using qualified personnel. Client represents and warrants to CHM that Client (A) is the lawful owner or licensee of any material, including Client’s Pre-Existing IP and other data and information provided to CHM for the performance of Services and (B) has the right to permit CHM’s access to, or use of, that material.
6.2 Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CHM EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, TERMS AND CONDITIONS, WHETHER IMPLIED BY OPERATION OF LAW OR BY CUSTOM, STATUTE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY, TERM OR CONDITION OF NON-INFRINGEMENT, MERCHANTABILITY, SECURITY, QUALITY, OR FITNESS FOR PARTICULAR PURPOSE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.1 By CHM.
(A) Indemnity. CHM will, at its expense, defend Client and its officers, directors, employees, agents and representatives (the “Client Indemnified Parties”) against any third party claim, action, suit or demand alleging that the Services or Client’s use of a Deliverable as provided by CHM infringes any U.S. copyright or patent of a third party (a “Client Claim”), and will indemnify and hold harmless the Client Indemnified Parties from and against (1) any fines, penalties, and final award of damages (including any third party attorney’s fees included in the final award of damages) against the Client Indemnified Parties based on the Client Claim, and (2) any reasonable out-of-pocket defense-related costs (other than attorneys’ fees for Client Indemnified Parties’ counsel) incurred by Client Indemnified Parties related to a Client Claim. CHM may settle, at its own expense, any Client Claim. CHM will not, without the prior written consent of Client, which consent will not be unreasonably withheld, conditioned or delayed, effect any settlement of any Client Claim unless that settlement (a) does not include a financial obligation on Client, (b) includes an unconditional release of Client from all liability on claims that are the subject matter of such proceeding, and (c) requires no admission of wrongdoing by Client.
(B) Resolution of Client Claims. In the event of a Client Claim or if CHM believes a Client Claim is likely, CHM may, at its option and at no expense to Client, and in addition to CHM’s obligations in Section 7.1(A), (1) obtain for Client, by license or other release from the Client Claim, the right to continue to use the Service or Deliverable in accordance with this Agreement, (2) provide Client with a substitute, functionally equivalent and non-infringing version of the Service or Deliverable, or (3) modify the Service or Deliverable to make it non-infringing and functionally equivalent in all material respects. If, despite the exercise of prompt and commercially reasonable efforts (in the context of revenues retained by CHM under this Agreement), CHM is unable to accomplish any of options (1), (2) or (3) above, then CHM may terminate this Agreement by providing Client with at least 30 days’ prior written notice.
(C) Limitations and Restrictions. CHM will have no obligation to defend, indemnify or hold Client or any Client Indemnified Party harmless for any Client Claim to the extent it arises out of or results from: (1) Client’s specifications; (2) External Materials; (3) Client’s use of the allegedly infringing item in combination with materials, products, software or processes not licensed or provided to Client by CHM or with which they were not intended to be combined; (4) the modification of or addition to (or attempted modification of or addition to) any allegedly infringing item by anyone other than CHM or on CHM’s behalf, or the use of such modification or addition; (5) modifications or additions made to the allegedly infringing item by CHM or any third party at the request of Client or to Client’s specifications; or (6) the use of the item other than in compliance with applicable specifications or the rights granted under this Agreement. Client will take reasonable actions to mitigate damages for which CHM is obligated to indemnify Client or any Client Indemnified Party. Section 7.1 states CHM’ sole and entire liability, and Client’s sole and exclusive remedy, in respect of Client Claims.
7.2 By Client. Client will defend, indemnify and hold harmless CHM, its affiliates and their officers, directors, employees, agents and representatives from and against any and all proceedings, actions, claims, losses, costs, damages, liabilities or expenses (including, without limitation, reasonable attorneys’ fees) arising from any third party claim (A) arising out of or based on Client’s breach of this Agreement, or use or misuse of the Deliverables, (B) related to any allegation of violation by or on behalf of Client of any laws, rules or regulations, and (C) resulting from an allegation that materials (including Client’s Pre-Existing IP, software, hardware and systems) or use of specifications or instructions provided by or on behalf of Client infringe any intellectual property right or any other rights of a third party.
7.3 Procedure. The party seeking indemnification (the “Indemnitee”) must notify the party with the indemnification obligation (the “Indemnitor”) in writing, with reasonable promptness, of any claim under this Section 7. The Indemnitee shall reasonably cooperate with the Indemnitor in the Indemnitor’s defense or settlement of any claim. For purposes of this Section 7, the Indemnitee may participate in the defense of any claim at its expense and through counsel of its own choosing.
8. Limitation on Liability. EXCEPT WITH REGARD TO CLAIMS ARISING UNDER SECTION 7 (INDEMNIFICATION) AND FEES DUE TO CHM UNDER THIS AGREEMENT, REGARDLESS OF THE THEORY OF LAW OR LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHER THEORY, (A) IN NO EVENT WILL CHM BE LIABLE TO CLIENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) LOSS OF PROFIT, DATA, USE, INCOME OR SAVINGS, EVEN IF ADVISED OF THAT POSSIBILITY, AND (B) IN NO EVENT WILL CHM’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID OR PAYABLE BY CLIENT TO CHM DURING THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
9.1 Notices. Any notices or other communications required to be given in writing under this Agreement will be effective upon email delivery, personal or courier delivery, or three days after deposit into the U.S. mail (certified mail, return receipt requested, with a copy by email), properly addressed to the other party at the respective address set forth in the signature block of this Agreement or at another address as a party may indicate by written notice to the other party.
9.2 Independent Contractors. Each party is an independent contractor, and neither party has the authority to bind, represent or commit the other to any obligation to a third party except as expressly set forth in this Agreement. Nothing in this Agreement is intended to create an employment or co-employment relationship, a joint venture, a partnership, or any agency relationship between the parties. CHM is solely responsible for the compensation and performance of its employees and subcontractors, the filing of any and all returns and reports, and the withholding and payment of all applicable taxes for CHM, its employees and any other agents or subcontractors that CHM uses to perform under this Agreement.
9.3 No Implied Licenses. There are no implied licenses under this Agreement, and any rights not expressly granted hereunder are reserved.
9.4 Reference. CHM may identify and reference Client by name in marketing materials, including in case studies in the marketing materials, provided by CHM to prospective clients. Case studies may include descriptions of the Services provided to Client, including any technologies used and results obtained, so long as CHM does not disclose any of Client’s Confidential Information in those descriptions.
9.5 Assignment. Client may not assign any right or obligation under this Agreement without the prior written consent of CHM. Any merger, acquisition, change of control, sale of all or substantially all of Client’s assets or other similar transaction involving Client (regardless of whether or not Client is the surviving entity) will be considered an “assignment” under this Section subject to CHM’s consent. This Agreement is binding on the parties and their successors and permitted assigns. Any assignment in contravention of this subsection is void.
9.6 Non-Solicitation. During and for 18 months after the Term, Client shall not solicit for employment, hire, or otherwise engage any employee or contractor of CHM without first obtaining CHM’s written consent. However, this Section is not intended to prevent Client from hiring a CHM employee or contractor who answers any advertisement or who otherwise voluntarily applies for hire without having been solicited by Client.
9.7 Equitable Relief. If Client breaches (or attempts or threatens to breach) its obligations related to confidentiality or intellectual property ownership, CHM will be entitled, without the need to post bond or prove damages, to proceed directly to court to seek the entry of an appropriate order compelling performance by Client and restraining it from any further breaches (or attempted or threatened breaches).
9.8 Governing Law; Arbitration. This Agreement and the parties’ performance under this Agreement shall be construed in accordance with the laws of the State of Texas and applicable United States law, without giving effect to any conflict-of-laws principles that may provide for the application of the law of another jurisdiction. Except as set forth in Section 9.7, any and all disputes and controversies arising from or relating to this Agreement or the enforcement of any provision of this Agreement must be arbitrated in Dallas County, Texas before a single arbitrator who is jointly selected and mutually approved by the parties or, if Client and CHM are unable to or fail to agree on the selection of the arbitrator within 15 days of the demand for arbitration being served, the single arbitrator will be appointed by JAMS in accordance with its rules. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the expedited procedures in those rules). The arbitrator will require the non-prevailing party to pay for the costs of arbitration, including reasonable attorneys’ fees incurred by the prevailing party in connection with the arbitration. The results of the arbitration procedure will be considered Confidential Information of both parties. Any arbitration decision rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction. Any proceeding to resolve or litigate any dispute hereunder will be conducted solely on an individual basis, and neither Client nor CHM will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be joined, consolidated, or combined with another arbitration or proceeding without the prior written consent of all parties to such other arbitration or proceeding.
9.9 Amendment; No Waiver. No amendment, waiver, or discharge of this Agreement will be valid unless in writing and signed by an authorized representative of the party against which such amendment, waiver, or discharge is sought to be enforced. Either party’s waiver of a breach or a default of any provision of this Agreement will not be construed as a waiver of any subsequent breach of the same or any other provision. A party’s delay or failure to exercise or avail itself of any right will not operate as a waiver of any right by that party.
9.10 Severability. If any provision of this Agreement is illegal or unenforceable, then that provision is deemed to be restated to reflect as nearly as possible the parties’ original intentions in a manner that complies with applicable law. All other provisions of this Agreement will remain in full force and effect.
9.11 Survival. The terms of Sections 2, 3 (to the extent Fees are still due), 4.3, 5, 6.2, 7, 8 and this Section 9 will survive expiration or termination of this Agreement.
9.12 Force Majeure. If a party is prevented from performing or is unable to perform any of its obligations (other than Client’s payment obligations) under this Agreement because of occurrences beyond the reasonable control of that party, including any act of God, fire, casualty, flood, war, terrorism, strike, lockout, riot, insurrection, failure of the public internet, telecommunication breakdown or power outage then its performance will be excused, and the time for the performance will be extended, for the period of delay or inability to perform due to such occurrences.
9.13 Construction. If there are any ambiguities contained herein, this Agreement shall not be construed in favor of or against any party irrespective of which party drafted this Agreement and notwithstanding any rule of law or of evidence to the contrary.
9.14 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding this Agreement’s subject matter and supersedes all oral or written prior agreements, representations, proposals, discussions, and communications related to this Agreement’s subject matter.
9.15 Counterparts. The parties may execute this Agreement in counterparts, each of which will be deemed an original, and both of which, when taken together, will constitute one and the same agreement.