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1. Assignment. FBM will assist the Client with various marketing and associated projects. Each project will be described in detail in an outlined invoice as part of this Agreement (each and “Assignment”). FMB shall use its reasonable best efforts to facilitate the successful completion of Assignments and shall perform Assignments in a professional manner. FBM will spend as much time as required in its good faith business judgment to facilitate the successful completion of Assignments or to meet the timeline as agreed upon. All of FBM’s work contemplated hereunder shall be performed by an Agent of FBM, unless otherwise agreed to by Client in writing. No subcontracting of FBM’s obligations hereunder is permitted except with the written approval of Client. 

2. FBM Fees and Business Expenses.  In consideration of services provided by FBM hereunder, FBM’s compensation will be determined on a project-specific basis and specified in corresponding invoices. As a rule, for project work, Client shall pay FBM the agreed rate listed, and/or an hourly fee in the amount of $125 dollars. FBM’s fees will be paid within fourteen (14) business days following the submission of detailed invoices by FBM. FBM’s fees will be subject to the termination provisions of Section 10 of this Agreement. FBM’s business expenses will be separately charged and reimbursed by Client within fourteen (14) business days of FBM’s submission of detailed invoices. FBM agrees to obtain prior written approval from the Client before incurring any material business-related expenses.

3. Client’s Confidential Information and Materials.  FBM agrees and acknowledges that it may come into Confidential Information (as defined below) during the Assignment and that such Confidential Information is proprietary to its clients and highly sensitive in nature. “Confidential Information” is the information and materials of Client and its clients obtained during or in connection with the Assignment in whatever form and whether now existing or developed or created during the period of FBM’s engagement with Client, and which is generally unknown to the public or in the industries and trades in which Client or its clients competes. Confidential Information shall include, but is not limited to:

4. Information Marked Proprietary or Confidential:  All data, plans, documents, materials, and other information received by FBM from Client or its clients in tangible form and marked “proprietary”, “confidential” or “trade secret”.

5. Products:  Any and all ideas, concepts, know-how, methods, techniques, strategies, structures, information and material relating to existing products or products in various states of research and development

6. Business Procedures:  Internal business procedures and business plans, including methods and procedures, vendor names, other vendor information, purchasing information, financial information, service and operational manuals and documentation, therefore, ideas for new products and services and other such information which relates to the way Client or its clients conduct their business.

7. Intellectual Property:  Intellectual property of Client and its clients, including, but not limited to, patents, copyrights, trade secrets, trademarks, service marks, business methods and the like.

8. Marketing Plans and Customer Lists:  Any and all customer and marketing information and materials, such as (i) strategic data, including marketing and development plans, forecasts and forecast assumptions and volumes, and future plans and potential strategies of Client or its clients which have been or are being discussed; (ii) financial data, including price and cost objectives, price lists, pricing policies and procedures, and quoting policies and procedures; and (iii) customer data, including customer lists, names of existing, past or prospective customers and their representatives, data provided by or about prospective existing, or past customers, customer service information and materials, data about the terms, conditions and expiration dates of existing contracts with customers and the type, quantity and specifications of products and services purchased, leased or licensed by customers of Client or its clients.

9. Client Information:  The identity of clients, the scope and duration of Client’s projects for its clients and the nature, amount and timing of compensation received by Client from its clients, and any other client information deemed confidential pursuant to any agreements between Client and its clients, provided such is disclosed to FBM.

10. Confidential Information shall not include information which FBM can establish (i) was publicly known or available in the public domain prior to the time of disclosure to FBM by Client; (ii) becomes publicly known or available in the public domain after disclosure to FBM by or on behalf of Client through no action or inaction of FBM; or (iii) is in the possession of FBM, or becomes available to FBM, without confidentiality restrictions.

11. FBM’s Obligations as to Confidential Information and Materials.  During FBM’s engagement by Client, FBM may have access to the Confidential Information and will occupy a position of trust and confidence regarding Client and its clients’ affairs and business. FBM agrees to take the following steps to preserve the confidential and proprietary nature of the Confidential Information.

12. Non-Disclosure:  During and after FBM’s engagement with Client, FBM will not use, disclose or otherwise permit any person or entity (each an “Interested Party”) access to any of the Confidential Information. FBM understands that FBM is not allowed to sell, license or otherwise exploit any products or services (including software in any form), which embody in whole or in part any Confidential Information.

13. Authorized Disclosures:  To the extent required by applicable law, regulation or judicial subpoena, FBM may disclose the Confidential Information to a proper legal or regulatory authority or a court with proper jurisdiction (a “Required Disclosure”); provided that FBM shall (i) to the extent permitted by law, provide Client advance notice of such Required Disclosure so that Client may seek a protective order or other remedy in order to preserve the confidentiality of the Confidential Information; (ii) only disclose those portions of the Confidential Information necessary, in the judgment of its legal counsel, to comply with the Required Disclosure; and (iii) use all reasonable efforts (at Client’s sole cost and expense) to obtain confidential treatment of the Required Disclosure by the legal or regulatory authority or court requiring the disclosure.

14. Prevent Disclosure:  FBM will take all reasonable precautions to prevent disclosure of the Confidential Information to unauthorized persons or entities. Notwithstanding the previous sentence, FBM may, with legitimate business purpose, disclose Confidential Information to its agents, employees, and contractors, provided such parties agree to respect and maintain the confidentiality of such information as if they were parties to this Agreement.

15. Return All Materials:  Upon termination of FBM’s engagement with Client for any reason whatsoever, FBM will, upon Client’s request, deliver to Client all tangible materials embodying the Confidential Information, including any documentation, records, listing, notes, data, sketches, drawings, memoranda, models, accounts, reference materials, samples, machine-readable media and equipment which in any way relate to the Confidential Information. FBM further agrees not to retain any copies of any of the above materials: provided, however, that nothing in this paragraph shall be deemed to require FBM to take extraordinary measures to remove trace digital information from its systems.

16. Non-Solicitation.  FBM hereby agrees that it shall not, during the period of this engagement and for a period of 24 (twenty four) months after the termination of this engagement, without Client’s prior written consent, directly or indirectly: (a) solicit or induce, or cause others to solicit or induce, any employees of Client to leave or in any way modify their relationship with Client; (b) hire or cause others to hire any employees of Client; (c) encourage or assist in the hiring process of any employees of Client, or in the modification of any such employee’s relationship with Client, or cause others to participate, encourage or assist in the hiring process of any employees of Client; (d) encourage, solicit or compel clients of Client to terminate, reduce or refrain from renewing their engagements with Client; or (e) solicit the trade or patronage of any clients or customers or any prospective clients or customers of Client with respect to products or services similar or identical to those provided by Client. This provision shall survive the expiration of the Term and continue in effect thereafter as applicable. 

17. Remedies.  No remedy conferred on Client by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given or now or later existing at law or in equity or by statute or otherwise.

18. Representations.  The parties represent and warrant to each other that this Agreement constitutes a legal, valid and binding agreement enforceable in accordance with its terms and that the signatories hereto have the absolute and unrestricted right, power, authority and capacity to execute and deliver this Agreement and to perform their respective obligations hereunder.

19. Termination.  This agreement may be terminated by either FBM or Client at any time, for any reason upon ten (10) business days’ prior written notice. Upon termination by either party, provided that the Agreement was not terminated for Cause by Client (“Cause being defined as a breach of this Agreement by the FBM), Client shall within ten (10) business days compensate the FBM for any unpaid fees for work performed prior to the termination date. Provided that the Agreement was not terminated for Cause by Client, where a Statement of Work provides that FBM is to be paid fees for a specified period. This Agreement shall automatically terminate in its entirety in the event of Beverly Karns’ or Janey Hawley’s incapacitation or death. The provisions of Sections 4, 5, 6, 12 and 13 shall survive the termination of this Agreement.

20. Independent FBM Status.  FBM is an independent contractor and not an employee of Client. Accordingly, FBM retains the sole and absolute discretion and judgment in the timing, manner and means of carrying out her services hereunder. FBM is responsible for paying its federal, state and local income taxes, estimated income taxes, employment taxes, FICA and applicable self-employment taxes and any and all other taxes incident to or levied upon the compensation earned by FBM under this Agreement; and none of the taxes referred to in this section shall be paid by the Company or withheld by the Company from monies due from the Company to FBM under this Agreement. FBM further acknowledges that FBM is ineligible to participate in Client’s employee benefit and retirement plans. Consequently, Client will not pay or make any provisions for any, health or life insurance, employee savings or retirement plans on FBM’s behalf. These are solely the responsibility of the FBM.

21. Ideas and Inventions.  FBM agrees to assign to Client all FBM’s right, title, and interest in or to any and all ideas, concepts, know-how, techniques, processes, methods, inventions, discoveries, developments, innovations and improvements (“Inventions”) conceived or made by FBM, whether alone or with others, in the course of FBM’s engagement with Client, and which either (a) were developed in pursuit of or during Assignment; or (b) incorporate or are based on, in whole or in part, any of the Confidential Information received by FBM in connection with Assignment, or (c) involve or are reasonably related to the business of Client or to Client’s actual or demonstrably anticipated research or development. FBM agrees to disclose such Inventions to Client promptly, and to provide all assistance reasonably requested by Client in the preservation of its interests in such Inventions, such as by executing documents, testifying, etc., such assistance to be provided at Client’s expense. FBM shall endeavor at the expense of Client, to assist Client or its nominees to obtain patents for such Inventions in any countries throughout the world. Such Inventions shall be the property of Client or its nominees, whether patented or not. FBM shall and does, hereby, without charge to Client, assign to Client all of the FBM’s right, title and interest in and to such Inventions, including patent and patent applications and reissues thereof FBM agrees to execute, acknowledge, and deliver any instruments confirming Client’s complete ownership of such inventions. Such Assignment shall include the right to sue for infringement.

22. Copyrights.  FBM agrees that any work prepared for Client which is eligible for copyright protection in the United States or elsewhere shall be a work made for hire. If any such work is deemed for any reason not to be a work made for hire, FBM hereby assigns to Client all right, title and interest in the copyright in such work, and all derivative works, extensions and renewals thereof. FBM further agrees to provide all assistance reasonably requested by Client in the establishment, preservation and enforcement of its copyright in such work, such assistance to be provided at Client’s expense.

23. Severability and Other Rules of Construction.  Each provision of this Agreement shall be interpreted where possible in a manner necessary to sustain its legality and enforceability. The unenforceability of any provision of this Agreement in a specific situation, or the unenforceability of any portion of any provision of this Agreement in a specific situation, shall not affect the enforceability of (i) that provision or portion of provision in another situation or (ii) the other provisions or portions of provisions of this Agreement if such other provisions or the remaining portions could then continue to conform with the purposes of this Agreement and the terms and requirements of applicable law. 

24. Indemnification.  FBM shall be indemnified, defended and held harmless by Client from and against any loss, expense, judgment, settlement cost, fee and related expenses (including attorneys’ fees and expenses), costs or damages suffered or sustained directly as a result of the performance of Assignment or arising out of or in connection with action or failure to act on the part of FBM in connection with the performance of Assignment, unless such act or failure to act was the result of the willful misfeasance, bad faith or gross negligence of FBM, including, without limitation, any breach by FBM of the confidentiality provisions of this Agreement. Client and each of its affiliates, officers, partners, directors, members, managers, shareholders, employees or agents and/or the legal representatives of any of them and any controlling person of any of them (collectively, the “Indemnified Persons” and each an “Indemnified Person”) shall be indemnified, defended and held harmless by FBM from and against any loss, expense, judgment, settlement cost, fee and related expenses (including attorneys’ fees and expenses), costs or damages suffered or sustained directly during Assignment or arising out of or in connection with action or failure to act on the part of such Indemnified Person in connection with the performance of Assignment, unless such act or failure to act was the result of the willful misfeasance, bad faith or gross negligence of such Indemnified Person. 

25. Miscellaneous.  Fat Bird marketing, LLC and the Client I/A will be governed by the internal laws of the State of Colorado, without regard to conflict of law principles. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, or otherwise relating to this Agreement shall be brought by either party in the courts of the State of Colorado or, if it has or can acquire jurisdiction, in the United States District Court of Colorado, located in Denver, and each of the parties hereof submits to the exclusive jurisdiction of such courts in connection with any action or proceeding covered hereby. Neither party may rely on any discussions, negotiations, or representations pre-dating this Agreement, and this Agreement may not be modified other than in writing executed by FBM and Client.

26. Fat Bird marketing, LLC welcomes your questions or comments regarding these Terms and Conditions. If you believe that Fat Bird marketing, LLC LLC has not adhered to these Conditions, please contact us at https://www.fatbirdmarketing.com/contact-us

 

Effective as of Aug 16th 2021.

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