1. DEFINITIONS
   1. “Client-Provided Materials” means the materials, without limitation, designs, photos, drawings, renderings, files, Intellectual Property Rights, strategy, and technology owned, authorized for use, or otherwise legally controlled by Client that Client provides to Agency in connection with Agency’s performance of the Services.
   2. “Deliverables” means all necessary items to fully and properly execute advertising campaigns, including but not limited to brand assets, designs, photos, drawings, renderings, files, strategy, and marketing services provided by Agency (including any drafts of the foregoing).
   3. “Agency Materials” means Agency’s pre-existing or preparatory materials created by Agency including but not limited to ideas, sketches, initial copy, concepts, proof of concepts, artwork and type, proprietary information, data, technology, methods and methodologies, software code, documentation, tools, software and interfaces, trade secrets, works of authorship, intellectual property, and other proprietary materials, and all other information, inventions, materials, data, software, hardware, technology, trademarks and works of authorship, (collectively “Agency Materials”) whether protected by Intellectual Property Rights held by Agency or not, or used by Agency in the performance of the Services. The definition of Agency Materials does not include Client Provided Materials or Third Party Materials, except to the extent that Agency Materials exist in such Third Party Materials.
   4. “Intellectual Property Rights” means any and all now known and hereafter existing (a) copyrights, and copyrightable works of authorship, exploitation rights, moral rights and mask work rights, (b) trademark, trade name and service mark rights, (c) trade secret rights, including, without limitation, all rights in Confidential Information and proprietary rights whether arising by law or contract, (d) patent rights, patentable inventions and processes, designs, algorithms and other industrial property rights, and (e) other intellectual and industrial property and proprietary rights of every kind and nature throughout the world, whether arising by operation of law, by contract, by license or otherwise.
   5. “Services” means software development services, advertising campaign services, graphic design services, including but not limited to creative imagery, media, visual communications, any portion of which or all of which is performed by Agency pursuant to this Agreement.
   6. “Third Party Materials” means proprietary information, concepts, artwork, type, data, technology, methods and methodologies, software, hardware, documentation, tools, software and interfaces, trade secrets, works of authorship, trademarks and other proprietary materials of a party other than Agency or Client except for any of the foregoing that are included in the definition of Client-Provided Materials.
2. CLIENT DUTIES
   1. Client-Provided Materials and Information. Client will provide Agency with the Client-Provided Materials as well as assistance and information reasonably requested by Agency in connection with Agency’s performance of the Services. Client represents and warrants that Client owns, is authorized to use, or otherwise legally controls the Client-Provided Materials and information.

1. 2. Client is legally responsible for all Client Provided Materials materials uploaded, posted or stored through Client’s use of this website and/or the Services. Client grants Agency a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide the Services during the term of this Agreement. Agency agrees not to use the Client Provided Materials for any illegal purpose or in violation of any applicable local, state, federal or international law. Agency and Client must provide required warnings, information and disclosure when necessary. Client is encouraged to archive the Content regularly and frequently. Client is responsible for any Content that may be lost or unrecoverable through the use of the Services. 

Agency and Client agree that Agency has the sole discretion to immediately remove, delete, terminate or prevent any Client uploads, posts, distributions, publications, reproductions, or transmissions that Agency deems to be in violation of Section 2.

3. INTELLECTUAL PROPERTY RIGHTS

1. 1. Client-Provided Materials. Client hereby grants Agency a royalty-free, non-exclusive, non- transferable license to use and modify the Client-Provided Materials, as necessary and in full communication with Client, solely in order for Agency to perform the Services and develop and prepare the Deliverables. Client hereby represents and warrants that to the extent Client provides to Agency any Client-Provided Materials, Client will have obtained all necessary permissions, licenses, and consents and will have the authority to provide such Client-Provided Materials to Agency.

1. 2. Agency’s Use of Deliverables for Advertising and Marketing. Subject to the confidentiality protections in Section 9, Client grants Agency the right to show images and a description of the deliverable for sales and marketing purposes. Client also agrees to permit its name to appear on client lists used by Agency for sales and marketing purposes. Client warrants and represents that Client owns or otherwise controls the rights to the Content and grants Agency a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Content on and through the Service and in promotional or advertising materials, and (ii) sublicense to third parties such Content to the extent necessary for the creation and maintenance of, in part or in whole, such Services and materials.

1. 3. Client’s Rights to Use the Services and Restrictions. The Services are protected by copyright, trade secret, and other intellectual property laws. Client is only granted the right to use the Services as expressly provided below, and Agency reserves all other rights in the Services not granted to Client expressly in writing here. As long as Client meets any applicable payment obligations and companies with this Agreement, Agency grants to Client a personal, limited, non-exclusive, non-transferable, non- sub-licensable right to use the Services, subject to the provisions of this Agreement, only for the period of use provided in the Terms, and only for the purposes described by Agency on the website for the Services.

1. 4. Usage Restrictions. Client agrees not to use the Services or the Content in a manner that violates any applicable law, regulation or this Agreement. Client agrees not to:
      
      4. Provide access to or give any part of the Services to any third party.
      5. Reproduce, duplicate, copy, deconstruct, sell, trade or resell the Services.
      6. Attempt to access any other systems provided by Agency that are not part of these Services.

If Client violates any of these terms and/or this Agreement Client’s right to use the Services may be immediately terminated by Agency in its sole discretion.

1. 5. Copyright and Trademark Notices. All components of the Services and related materials, and any Software provided by Agency as part of the Services (as well as the organization and layout of the Services) and all intellectual property rights therein are owned or licensed by Agency, its affiliates or its suppliers. Reproduction, distribution, or transmission of the copyrighted materials related to the Services, which includes the Agency’s websites or additional websites or any co-branded websites and any Software, is prohibited without the written permission of Developer. Any rights not expressly granted herein are reserved. Fetch & Funnel, Inc., Fetch & Funnel, the Fetch & Funnel logo, and other Fetch & Funnel trademarks, logos and product and service names are trademarks of Fetch & Funnel, Inc.

4. ADDITIONAL PRODUCTS, SERVICES AND TERMS

1. 1. Additional Agency Services. Client may be offered Additional Agency Services. If Client decides to use any of these Additional Agency Services, additional terms and conditions and separate fees may apply.

1. 2. Third Party Services. Agency may tell Client about third party products or services. If Client decides to use any Third Party Products or access any Third Party Sites, Client is responsible for reviewing the third party’s separate product terms, website terms and privacy policies. Client agrees that the third parties, and not Agency, are responsible for their product’s performance and the content on their websites. Agency is not affiliated with these Third Party Products or Third Party Sites and has no liability for them.

5. WARRANTIES

1. 1. Agency Warranty. Agency warrants for the duration of the Service period that the Services provided hereunder will be performed in a professional manner. Agency warrants that the Deliverables will be the original work product of Agency (except to the extent agreed in writing by Client) and, warrants that, to the best of Agency’s knowledge, no Deliverable delivered to Client hereunder shall infringe on any third party patent, copyright or other Intellectual Property Right.

THE FOREGOING LIMITED WARRANTY IS AGENCY’S ONLY WARRANTY CONCERNING THE SERVICES AND ANY DELIVERABLES, IS MADE FOR THE BENEFIT OF CLIENT ONLY, AND IS IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.

6. INDEMNIFICATION

1. 1. Agency will defend, indemnify and hold Client and each of its current and former directors, officers, agents, representatives, members, managers, employees, successors and assigns, harmless from and against any and all costs, damages, claims, suits, actions, liabilities, losses and judgments, based upon (a) a claim of personal injury, death, or damage to Client’s tangible property resulting from the negligence or willful misconduct of Agency or its agents (b) a claim that the process utilized by Agency in creating the Deliverables infringes on the Intellectual Property Rights of a third party. Client will defend, indemnify and hold Agency and its directors, officers, agents, representatives, members, managers, employees, successors and assigns, harmless from and against any and all costs, damages, claims, suits, actions, liabilities, losses and judgments, based upon a claim of personal injury, death, or damage to Agency’s or a third party’s tangible property resulting from the negligence or willful misconduct of Client or its agents.

1. 2. If any claim or action (a “Claim”) is commenced against a Party for which indemnification is sought under this Section (the “Indemnified Party”), the Indemnified Party will give written notice to the other Party (the “Indemnifying Party”) within a reasonable time of its receipt of notice of such Claim. If the Indemnifying Party is obligated under this Section to defend the Indemnified Party against such Claim, then the Indemnifying Party will take control of the defense and investigation of the Claim, with counsel reasonably acceptable to the Indemnified Party. The Indemnified Party will cooperate in all reasonable respects in such investigation and defense; and may participate in the defense with counsel of its choosing, at its own expense. The Indemnifying Party will not enter into the settlement of any Claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld or delayed.

7. LIMITATIONS ON LIABILITY

1. 1. THE MAXIMUM LIABILITY OF AGENCY, ITS MANAGING MEMBERS AND OFFICERS TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT TO AGENCY IN CURRENT MONTH HEREUNDER FOR THE PORTION OF THE SERVICES GIVING RISE TO ANY CLAIM. IN NO EVENT WILL EITHER PARTY, ITS MANAGING MEMBERS AND OFFICERS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY INCLUDING BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
   2. No special damages. In no event will either party be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of this agreement (including, without limitation, loss of business, revenue, profits, goodwill, use, electronically transmitted orders or other economic advantage), however they arise, whether in breach of contract, breach of warranty or in tort, including negligence, and even if that party has previously been advised of the possibility of such damages, and whether or not such damages are foreseeable.

8. CONFIDENTIALITY

1. 1. Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, which information is either marked as confidential or proprietary (or bears a similar legend) or which a reasonable person would understand to be confidential given the circumstance and nature of the disclosure (“Confidential Information”), and whether disclosed orally or in writing. Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure as shown by credible evidence; (ii) before or after it has been disclosed to the Receiving Party, enters the public domain, not as a result of any action or inaction of the Receiving Party; (iii) is approved for release by written authorization of the Disclosing Party; (iv) is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or (v) is independently developed by the Receiving Party without reference to Confidential Information of the Disclosing Party, as evidenced by such party’s written records.

1. 2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to Receiving Party’s employees, agents, directors, officers, auditors, regulators and contractors on a “need to know” basis, provided such persons are under a contractual obligation with Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information, than the terms of this Section 8. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Notwithstanding the foregoing, Confidential Information may be disclosed as required by law or by order of a court of competent jurisdiction. In such event and if reasonably possible under the circumstances of disclosure, the Receiving Party will provide the Disclosing Party with prompt prior notice of such obligation in order to permit the Disclosing Party an opportunity to take legal action to prevent or limit the scope of such disclosure, including the opportunity to seek a protective order. Unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause irreparable harm to the Disclosing Party for which recovery of money damages would be inadequate; consequently, the Disclosing Party shall be entitled to timely injunctive relief to protect its rights under this Section 8, without the necessity of posting a bond therefore, in addition to any and all remedies available at law or in equity.

9. TERM AND TERMINATION

1. 1. Duration of Term. For all Services, the “Initial Term” will be as mutually agreed upon in the Order Confirmation. The initial term of this Agreement commences on the Start Date and shall continue until the Services are completed, or unless either party gives Sufficient Written Notice or unless earlier terminated as set forth in this agreement. “Sufficient Written Notice” will be thirty (30) days prior to the expiration of the initial term or applicable monthly Renewal Term, unless otherwise agreed in the Order Confirmation. Fees payable to Fetch & Funnel for each Renewal Term shall be Fetch & Funnel’s then current fees.

1. 2. Termination – Generally and for Cause. This Agreement may be terminated by Client at any time, for any reason or for no reason, upon thirty (30) days’ prior written notice to the other party, or by either party upon ten (10) days prior written notice if the other party breaches or fails to perform any material term hereof and the breaching party fails to cure such breach within the ten (10) day period. Either party may terminate this Agreement if the other party discloses or misuses Confidential Information in breach of Section 9. Upon termination or expiration of this Agreement for any reason, all Services will immediately terminate and all charges for Services performed prior to the date of termination and for the remainder of the duration of the “Initial Term” contained within the Order Confirmation will become immediately due and payable.

10. GENERAL

1. 1. Independent Entities. The parties are separate independent entities, and nothing herein is intended or will be construed as creating a partnership, employment, joint venture or agency relationship between the parties.

1. 2. Agency may not assign or transfer, by operation of law or otherwise, any of its rights or obligations under this Agreement to any third party without prior written consent of Client (such consent not to be unreasonably withheld). Any attempted assignment or transfer in violation of the foregoing will be void. Client may assign all of its rights and delegate all of its obligations hereunder to an entity assuming all of such rights and obligations, without consent of Agency, in the event of Client’s merger, change of control, reorganization, or acquisition of all or substantially all the assets or business to which this agreement relates.

1. 3. Governing Law and Venue. This Agreement will be governed by the laws of the State of Massachusetts in the United States of America, without giving effect to the choice or conflicts of law provisions of any jurisdiction to the contrary. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court seated in Boston, Massachusetts or in state court of competent jurisdiction seated in Suffolk County, Massachusetts, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, costs, and other expenses, in addition to any other relief it may be entitled to receive.

1. 4. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

1. 5. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

1. 6. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

1. 7. Price Changes. Prices of all subscriptions, products, and Services, including but not limited to monthly Service plan fees, are subject to change upon 30 days notice from Agency to Client. Such notice may be provided at any time.

1. 8. Client acknowledges and agrees that Agency may retain an independent contractor to provide content work on behalf of Agency.

11. TERMS, CONDITIONS AND PAYMENT

If the Client selects a package with marketing, advertising or consulting services, no website services, the Client agrees that this agreement will auto renew monthly immediately upon completion of the Initial Term according to the date of contract execution. Fetch & Funnel will automatically charge for Services on the renewal date. Fetch & Funnel requires 30 days advanced notice for cancellations. Fetch & Funnel will schedule the Client Kickoff Meeting once this Agreement has been executed and payment has been received. Fetch & Funnel will schedule project deliverable dates at the Kickoff Meeting. If the Client does not adhere to the milestones outlined by the Fetch & Funnel team at the Kickoff Meeting, the expected deliverable dates may be adjusted accordingly. The Initial monthly payment is due upon execution of this agreement. Fetch & Funnel will automatically charge the card on file in the amount of the selected package on the date of agreement execution. If payment is declined for 14 consecutive days, Fetch & Funnel reserves the right to void this agreement, as outlined in section 11. If the Client selects an add on service or single project service. Fetch & Funnel will automatically charge for Services for the total project cost on the date of contract execution. If payment is declined, Fetch & Funnel reserves the right to void this agreement, as outlined in section 11.

12. MUTUAL WARRANTY
    Both parties represent and warrant that they have the legal power to accept and enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when accepted, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.

13. ENTIRE AGREEMENT
    This Agreement and Services constitute the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.