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Marketing Services Agreement

BAKERFIELD’S CHOICE
BUSINESS PRODUCT/SERVICE REVIEW AGREEMENT Rev. 1.0 (Updated 09/24/22) 

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This Business Product/Service Review Agreement (hereinafter referred to as the “Agreement”) is entered into as of the Effective Date by and between Enspyre Digital, LLC, doing business as ‘Bakersfield’s Choice’, a company governed by the laws of the State of California (USA), having its registered office located at 2005 Eye Street, Suite 8, Bakersfield, California, 93301, USA (“Bakersfield’s Choice(s)”), and Client. Bakersfield’s Choice and Client shall hereinafter be referred to together as the “Parties” and individually as the “Party”.

RECITALS

Whereas, Bakersfield’s Choice is in the business of promoting and advertising businesses on cellular phone applications and websites, and reviewing and promoting the products and/or services of local businesses, and advertising such review, in video format, on Bakersfield’s Choice’s social media account(s) including but not limited to Instagram, Facebook and TikTok.

And Whereas, the Client wishes to engage with and retain the Services (defined on the order form) provided by Bakersfield’s Choice for the benefit of the Client’s business operations, and Bakersfield’s Choice agrees to provide the Client with the Services defined subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the Parties agree as follows:

1. SERVICES

1.1 Subject to the payment of the Fees (defined below) the Parties agree that:

(i) Bakersfield’s Choice shall provide the products and services defined on the Bakersfield’s Choice Order Form (“Exhibit A”).

1.2 Both Parties agree to act in a professional manner and perform the Parties respective obligations hereunder in accordance with good business practices.

2. RESPONSIBILITIES OF THE PARTIES

2.1 Client’s Responsibilities. The Client shall be solely responsible for providing Bakersfield’s Choice with:

(i) the product(s) and/or service(s) to be reviewed and ensuring such product(s) and/or service(s) are available for purchase by interested third parties;
(ii) the Client’s logo, trademark and/or designs (collectively “Client’s Logos”), in the format requested by Bakersfield’s Choice, and which shall be used in the videos posted, displayed, and advertised on Bakersfield’s Choice’s social media account(s). As such, the Client hereby grants Bakersfield’s Choice with a non-exclusive, perpetual, non-transferable, revocable, non-sublicensable license to use the Client’s Logos in Bakersfield’s Choice’s Product Review videos; and
(iii) such access to the Client’s property, equipment, and facilities as may be reasonably required to permit Bakersfield’s Choice to perform the Services under this Agreement. For the avoidance of doubt, the Client acknowledges, understands, and agrees that Bakersfield’s Choice’s performance of the Services shall be conditioned upon receiving such information, access and cooperation from the Client as may be reasonably necessary to perform the Services under this Agreement.

2.2 The Client shall be solely responsible for the accuracy, reliability, and completeness of any and all information provided by the Client to Bakersfield’s Choice in relation to the Services. As such, the Client agrees to hold Bakersfield’s Choice harmless from any liability arising from the inaccuracy or incompleteness of the information provided by the Client to Bakersfield’s Choice.

2.3 Bakersfield’s Choice’s Responsibilities. Subject to the terms and conditions of this Agreement, Bakersfield’s Choice agrees to provide the Client with the Services in accordance with the terms and conditions of this Agreement. Bakersfield’s Choice reserves the right to deny the Client with access to and use of the Services at any time if Bakersfield’s Choice deems, in its sole discretion, that such denial is necessary to ensure the Client’s compliance with this Agreement or to protect Bakersfield’s Choice’s rights, property, and interests.

2.4 If Bakersfield’s Choice, reasonably believes in its sole discretion that the Client is participating in fraudulent or illegal activities, Bakersfield’s Choice may immediately suspend or terminate the performance of the Services and this Agreement.

3. FEES, PAYMENT AND TAXES

3.1 For the Term (defined below) of this Agreement and in consideration of the Services provided by Bakersfield’s Choice to the Client, the Client acknowledges and agrees to pay Bakersfield’s Choice the amount agreed upon and referred to on Exhibit A.

3.2 Payment of the Fees must be made by the Client to Bakersfield’s Choice as defined in Exhibit A and unless otherwise agreed by the Parties in writing, the Fees shall be paid by the Client to Bakersfield’s Choice via bank transfer, debit card or credit card and is non-refundable. Client agrees to place a card on file with Bakersfield’s Choice and allow Bakersfield’s Choice to automatically debit the card on the first day of each month during the term of this agreement.

3.3 Except as otherwise provided in this Agreement, the Client shall hold Bakersfield’s Choice harmless from and against any and all third party (Government) claims to collect any and all taxes (including interest and penalties on any such amounts, but other than Bakersfield’s Choice’s corporate income and similar taxes), payments, or fees required to be paid by the Client to any third party (Government) for the purchase of the Services. The Client shall be solely responsible to bear, remit, and pay any and all taxes, which shall include but not be limited to sales, use, value-added, consumption, excise, gross receipts or other similar taxes.

4. REPRESENTATION, WARRANTIES AND DISCLAIMERS

4.1 Each Party represents and warrants to the other Party that: (i) such Party is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such Party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such Party; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such Party’s entering into this Agreement.

4.2 Unless otherwise provided under this Agreement, the Services shall be provided by Bakersfield’s Choice to the Client “as is,” and “as available”. BAKERSFIELD’S CHOICE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE CLIENT’S USE OF THE SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR INTEGRATION.

4.3 BAKERSFIELD’S CHOICE DOES NOT WARRANT OR GUARANTEE THAT ANY SUCCESSFUL COMMERCIAL RESULTS OR PROFITS WILL BE OBTAINED BY THE CLIENT AS A RESULT OF ACCESSING/USING THE SERVICES. AS SUCH, BAKERSFIELD’S CHOICE WILL NOT BE LIABLE FOR ANY FAILURE, OR ANY LOSS OR DAMAGES INCURRED/SUSTAINED BY THE CLIENT.

4.4 The Client acknowledges that the views, thoughts, information, and opinions expressed in the Product Review video shall belong solely to Bakersfield’s Choice, and do not necessarily reflect or represent the views of the Client. Bakersfield’s Choice is not responsible and does not verify the accuracy of any information/data contained on the Product Review video and made available on Bakersfield’s Choice’s social media account(s). The primary purpose of the Product Review video is to educate and inform the public of the products and services available at local Bakersfield businesses. The Product Review video shall be available for personal and non-commercial purposes only.

5. PROPRIETARY RIGHTS

5.1 Bakersfield’s Choice and/or its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in the Product Review videos posted/displayed/advertised on Bakersfield’s Choice’s social media account(s), images, pictures, voice, opinions expressed, domain names, and to its pre-existing technology, products, Services, and all modifications, enhancements and derivative works thereof. All the visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, Services, images, and all other elements contained on Bakersfield’s Choice’s Product Review video(s), are the sole and exclusive property of Bakersfield’s Choice and/or its licensors.

5.2 The Client shall take all reasonable steps as requested by Bakersfield’s Choice to protect Bakersfield’s Choices’ intellectual property rights in the Product Review video(s) and Services including but not limited to copyrights, patent rights, trademarks and trade secrets.

5.3 Any Client’s Logos, data, information or other materials furnished to Bakersfield’s Choice by the Client in connection with the Client’s use of the Services shall remain the sole property of the Client. All such materials shall be (i) released and returned by Bakersfield’s Choice to the Client at the latest upon the termination or expiration of this Agreement, or (ii) destroyed upon the Client’s written request.

6. LIMITATION OF LIABILITY

6.1 EITHER PARTY SHALL IN NO EVENT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR FOR ANY LOST PROFITS, LOST SAVINGS OR LOSS OF REVENUES (OTHER THAN THE FEES PAYABLE UNDER THIS AGREEMENT) SUFFERED BY THE OTHER PARTY ARISING FROM OR IN ANY WAY CONNECTED WITH (I) THIS AGREEMENT; AND/OR (II) THE PERFORMANCE BY BAKERSFIELD’S CHOICE OF THE SERVICES.

6.2 BAKERSFIELD’S CHOICE’S TOTAL LIABILITY TO THE CLIENT UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED TWO-HUNDRED DOLLARS ($200.00) AND IS IN LIEU OF AND EXCLUDE ALL OTHER CONDITIONS AND WARRANTIES IMPLIED BY STATUTE LAW OR OTHERWISE.

7. TERM AND TERMINATION

7.1 The term of this Agreement shall commence on the Effective Date and shall remain in effect for a period of six (6) months unless terminated earlier by the Parties in accordance with this Section (“Initial Term”). The Initial Term shall automatically renew for an additional of six (6) months (“Renewal Term”) provided that Client makes payment of the applicable Fees during the Renewal Term. The Initial Term and any Renewal Term shall hereinafter be referred collectively as the “Term”.

7.2 Either Party may terminate this Agreement for any reason or for no reason upon providing the other Party with thirty (30) calendar days’ written notice. The Client shall remain liable for any amounts owed to Bakersfield’s Choice for the Services performed prior to the date of termination.

7.3 Termination for Cause. Either Party may terminate this Agreement in the event of a material breach by the other Party if the breaching Party has not cured/remedied such breach within thirty (30) calendar days of receiving a written notice from the other Party describing such material breach.

8. GENERAL PROVISIONS

8.1 Non-Exclusivity. The Parties’ respective obligations under this Agreement are non-exclusive and nothing herein is intended to restrict Client from accessing or using any other third-party’s services, even if such services are similar to the Services provided by Bakersfield’s Choice.

8.2 Severability. If any of the provisions or portions of this Agreement are held to be invalid under any applicable statute or rule of Law, such provisions shall be deemed to be omitted from this Agreement without in any way invalidating or impairing the other provisions of this Agreement.

8.3 No Waiver. A Party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement shall be in writing, specify the provision to be waived and signed/executed by the Party agreeing to the waiver.

8.4 No Third-Party Beneficiaries. This Agreement are not intended to and shall not be construed to give any third-party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with any term, agreement or provision contained herein or contemplated hereby.

8.5 No Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

8.6 No Agency, Partnership, or Employment Relationships. The Client acknowledges that Bakersfield’s Choice is merely a service provider. Accordingly, there is no employment, agency, joint venture, or partnership relationship between the Client and Bakersfield’s Choice.

8.7 Amendment. This Agreement cannot be amended or modified except in a writing signed by both Parties.

8.8 Notices. Except as otherwise provided under this Agreement, any notice required or permitted to be given by Client will be effective only if it is in writing and sent via email to [email protected]. Any notices provided to Client by Bakersfield’s Choice shall be sent to the email address provided by Client to Bakersfield’s Choice, or to such other address as the Client may specify from time to time. Notices shall be deemed to be given twenty-four (24) hours after the email is sent, unless the Party sending such notice is notified that the email address is invalid.

8.9 Entire Agreement. This Agreement including all schedules, represents the entire agreement between the Parties relating to the subject matter hereof.

10.9 Governing Law & Jurisdiction. In the event of any disagreement between the Parties with respect to any aspect of this Agreement, the Parties agree to discuss in good faith to reach an amicable resolution prior to starting any litigation/legal proceedings against each other.

This Agreement shall be construed and enforced in accordance with the laws of the State of California, USA.

The Courts in Kern County, California, USA shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. Both Parties hereby submit to the jurisdiction of said Courts for purposes of any such suit or proceeding and waive any claim that any such forum is an inconvenient forum.