SOMM CREATIVE LLC
Terms & Conditions
1. ENGAGEMENT; SERVICES.
a. Engagement. Client retains SOMM Creative to provide services in accordance with these Terms.
b. Services. Without limiting the scope of Services provided to Client, SOMM Creative shall:
i. perform the Services set forth in the corresponding Proposal of Services. However, if a conflict exists between these Terms and any term in a separate documented plan or order, these Terms will control;
ii. devote as much productive time, energy, and ability to the performance of its duties under these Terms as may be necessary to provide the required Services in a timely and productive manner;
iii. perform the Services in a safe, professional, and workmanlike manner at all times and with adequate equipment in good working order;
iv. communicate with the Client about progress SOMM Creative has made in performing the Services;
v. utilize its own tools, equipment, and supplies required to perform the Services, except if SOMM Creative’s work must be performed on or with the Client’s equipment;
c. Business Hours of Operation. SOMM Creative will operate under the business hours of: Monday thru Friday: 9:00AM - 6:00PM PST (Pacific Standard Time). SOMM Creative’s office observes Federal Holidays.
d. Legal Compliance. SOMM Creative conducts its business in accordance with good practices prevailing in the Client’s industry, and in accordance with applicable laws, rules, and/or regulations for operating a private business. SOMM Creative shall obtain all permits or permissions required to comply with those standards, laws, rules, or regulations.
e. Client’s Obligations. Client shall make timely payments of amounts earned by SOMM Creative in accordance with these Terms and notify SOMM Creative of any changes to the corresponding plan or order that will affect SOMM Creative’s obligations under these Terms. Such requested changes must be submitted in writing at least 30 days before implementing said changes.
2. COMPENSATION.
a. Terms and Conditions. The Client shall pay SOMM Creative in accordance with the separate documented Proposal of Services.
b. Expedite Fees. In the event Client requests last minute (with notice of 24 hours or less) production of any item, a minimum expedite fee of $100 may be charged to Client for processing. In the event that such fees apply, Client will be notified before work begins in order to pre-approve charges.
c. Expenses. Any internal office expense incurred by SOMM Creative or its staff in the performance of these Terms will be SOMM Creative’s sole responsibility. However, out of pocket expenses to third parties in support of Client, shall be borne by Client. All expenditures not included the monthly retainer, as described in the corresponding Proposal of Services, must be approved in advance by Client.
i. Direct Expenses. Any expenses exclusive of Agency of Record billing (AOR) will be invoiced on a monthly basis. Examples of these direct expenses include but are not limited to photography, videography, event production, out of pocket travel expenses, etc.
ii. Print Materials. Any and all expenses associated with printing materials, including but not limited to printing fees, design setup fees, etc will be the sole responsibility of the Client and must be paid directly to the 3rd party vendor.
iii. Email Database Charges. With respect to any scope of work that requires SOMM Creative to use Client’s email database: Due to third party restrictions, some email database(s) may require a subscription or service fee through a third party service. In the event that such fees apply, Client will be notified before the database incurs any charges in order to pre-approve the applicable fees.
d. Taxes. As a California corporation, SOMM Creative is solely responsible for payment of all income, social security taxes, and other employment-related, taxes incurred as a result of the performance of the Services by SOMM Creative under these Terms, and for all obligations, reports, and timely notifications relating to those taxes. The Client has no obligation to pay or withhold any sums for any taxes, local, state, or federal.
e. Other Benefits. SOMM Creative has no claim against the Client under these Terms or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
3. NATURE OF RELATIONSHIP; INVENTIONS
a. The relationship of the parties under these Terms is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by these Terms. Neither party may assume or create obligations on the other party’s behalf, and neither party may take any action that creates the appearance of such authority.
b. SOMM Creative has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. SOMM Creative and its personnel shall perform the Services, and the Client is not required to hire, supervise, or pay any assistants to help SOMM Creative perform those Services.
c. Client may download and reuse any published artwork created by SOMM Creative from Client social platforms. However, SOMM Creative retains all rights to artwork, templates, and other content designed, created, or published for Client marketing under this agreement. This includes but is not limited to email campaign templates, newsletter templates, and social post templates.
4. COPYRIGHT & TRADEMARKS. SOMM Creative may use, reproduce, and distribute the Client’s service marks, trademarks, and trade names (if any) (collectively, the “Client Marks”) in connection with the performance of the Services as stated in a separate documented plan or order. Any goodwill received from this use will accrue to the Client, which will remain the sole owner of Client’s Marks. SOMM Creative may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair Client’s interest in Client Marks. SOMM Creative may not cause diminished value of the Client Marks through any act or representation. SOMM Creative may not apply for, acquire, or claim any interest in any Client Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of these Terms, SOMM Creative will have no further right to use Client Marks, unless the Client provides written approval for such use.
a. Limited Use of Copyright Images. SOMM Creative will make all reasonable efforts to ensure that imagery obtained by SOMM Creative to be used in design and marketing materials for Client is obtained legally and holds the correct licensing. As the case may be, SOMM Creative may utilize “user generated” content. In doing so, SOMM Creative will make all reasonable attempts to gain consent and properly credit the image back to its original owner.
b. After transfer of materials to Client, Client is responsible for ensuring said rights remain in force and, should said rights be transferred to another party, Client is responsible for re-licensing the images from the new licensing party. SOMM Creative will not be responsible for notifying Client of any changes in said rights ownership after related services have been provided.
c. Logo and Artwork Creation’s Commercial Viability. SOMM Creative may create Logos, marketing collateral, banners, and other related artwork for Client’s use in marketing their services for a fee that does not include United States Patent Trademark Office searches for commercial viability. SOMM Creative does not verify if any artwork it creates can be commercially viable (whether the artwork can be copyrighted and/or trademarked). It is the sole responsibility of Client to have their legal counsel conduct copyright and trademark searches for commercial viability. In the event Client does receive notice from legal counsel that any SOMM Creative artwork must be modified to comply with such commercial viability in order to acquire copyrights or trademarks, SOMM Creative will make a revision to the artwork on a case-by-case basis, assuming said modifications are just that, “modification” to the existing artwork. If Client requests completely new artwork, Client will be required to pay for new artwork in accordance with SOMM Creative’s pricing set forth at that time.
5. MUTUAL CONFIDENTIAL INFORMATION NON-DISCLOSURE.
a. Confidentiality. During the Term, SOMM Creative may be required to use its own confidential information in support of Client as well as requiring access to or receiving confidential information from Client that the Client so designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by SOMM Creative or Client as (“Confidential Information”). Confidential Information includes any information relating to either SOMM Creative or Client, pricing, financial statements, budgets, projections, customer identifying information, potential & intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. SOMM Creative and Client will treat such Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill the obligations in these Terms. In addition, both SOMM Creative and Client shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
b. Exceptions. Proprietary Information shall not include information that (a) was already known to or independently developed by a Party prior to its disclosure as demonstrated by reasonable and tangible evidence; (b) shall have appeared in any printed publication or shall have become part of the public domain, except as a result of breach of these Terms by the receiving Party (c) shall have been received by a Party from another party with no obligation of confidentiality to the disclosing Party. These Terms do not require either party to disclose or receive Information.
c. SOMM Creative Rights for Promotional Purposes. SOMM Creative retains the right to use the Client’s business entity, name, and/or logo(s) for promotional purposes. This will not affect the confidentiality statements listed above. This is for the promotion of SOMM Creative’s services and advancement only.
6. RETURN OF PROPERTY AND CLAIMED OWNERSHIP. Within 14 days of the expiration or termination of these Terms, SOMM Creative shall return to the Client, retaining no copies or notes, all Client-provided products, samples, models, property, and documents relating to the Client’s business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by SOMM Creative during and in connection with its work with the Client. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, notebooks, and similar items relating to the Client’s business, remain the Client’s exclusive property. All artwork and/or content created by SOMM Creative will remain the exclusive property of SOMM Creative.
7. FORCE MAJEURE. Either party will be not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under these Terms by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, pandemic, local emergency, state emergency, national emergency, or similar event beyond that party’s reasonable control (each a “Force Majeure Event”). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable:
a. notify the other party of the Force Majeure Event and its impact on performance under these Terms; and
b. use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under these Terms.
8. GOVERNING LAW.
a. Choice of Law. The laws of the state of California govern these Terms (without giving effect to its conflicts of law principles).
b. Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Los Angeles, California.
9. AMENDMENTS. No amendment to these Terms will be effective unless it is in writing and signed by a party or its authorized representative.
10. OTHER ACTIVITIES. During the Term, SOMM Creative is free to engage in other independent contracting activities.
11. COUNTERPARTS; ELECTRONIC SIGNATURES. Ancillary to these Terms, and related documents entered into in connection with these Terms are signed when a Client’s signature is delivered by facsimile, email, or other electronic medium. Client’s signatures must be treated in all respects as having the same force and effect as original signatures.
12. SEVERABILITY. If any one or more of the provisions contained in these Terms is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of these Terms, but these Terms will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by these Terms to be unreasonable.
13. NOTICES.
a. Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by these Terms shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of these Terms: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), or email to SOMM Creative per the address stated at the beginning of this document and for the Client per the detailed address as stated on the acknowledgement page of these terms.
b. Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
14. WAIVER. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of these Terms will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
15. INDEMNIFICATION. Client will, at its expense, defend, indemnify, and hold SOMM Creative harmless against all costs, expenses, liabilities, and damages (including but not limited to reasonable attorney fees) paid out in settlement of, or resulting from, a judgment awarded to a third party against SOMM Creative resulting from any claim that any information and/or media material infringe or misappropriate the intellectual property rights of any third party, and/or legal statutes and regulations provided that SOMM Creative: (i) gives prompt written notice of any such claim; (ii) allows Client to direct the defense and settlement of the claim; and (iii) provides Client with the authority, information, and assistance reasonably necessary for the defense and settlement of the claim.
a. For any and all email marketing campaigns provided by SOMM Creative for Client, SOMM Creative may use a 3rd party email marketing service. SOMM Creative assumes that all email lists provided by Client meet the regulations set forth by the latest version of the Federal Trade Commission’s CAN-SPAM Act. SOMM Creative does not verify, validate, or investigate Client email lists. Therefore, Client will, at its expense, defend, indemnify, and hold SOMM Creative harmless in the event that any 3rd party determines email lists or other data provided by Client to be conflicting with relevant laws or email use policies.
16. CONSEQUENTIAL AND INCIDENTAL DAMAGES. Neither party will be liable to the other for any special, consequential, and/or incidental damages or loss of profit including, but not limited to, loss of data and loss of turnover, whether based on breach of contract, tort (including negligence), product liability or otherwise and whether or not such party has been advised of the possibility of such damage.
17. ERRORS AND/OR OMISSIONS. SOMM Creative creates content for Client based on information that Client provides to SOMM Creative. It is the Client’s sole responsibility to ensure that all marketing, design work, email blasts, social media campaigns, and/or other such items are in compliance with their local, state, and federal laws. SOMM Creative’s sole obligation hereunder is to “create” content and not “approve” content. SOMM Creative will not be held liable for any errors and/or omissions resulting from Client’s ability, or lack thereof, to correctly review and approve SOMM Creative content for accurateness in any manner whatsoever.
18. MISCELLANEOUS.
a. Entire Terms & Conditions. These Terms (including any related separate documented plan or order) contains the full and complete understanding between the parties and supersedes all prior understandings, whether written or oral, pertaining to the subject matter hereof. The parties expressly acknowledge that any representation, promise or inducement by any party to any other party that is not embodied in these Terms is not part of these Terms; and Client hereby agrees that no party shall be bound or liable for any such alleged representation, promise, or inducement not set forth herein.
b. Assignment. SOMM Creative may not, directly or indirectly, in whole or in part, neither by operation of law or otherwise, assign or transfer these Terms or delegate any of its obligations under these Terms without the prior written consent of Client. Any attempted assignment, transfer or delegation without such prior written consent will be void.
c. Timely Replies to Requests for Approval: All marketing, design, copy, or similar proofs are submitted to Client for approval prior to publishing, printing, submitting, and/or sending. In the event Client does not approve said submittals on the same day they are requested, SOMM Creative cannot be held responsible for missed deadlines.
d. Social Network Account Access. For social media marketing, access to Client’s social network accounts, including usernames and passwords, must be provided to SOMM Creative. As such, Client must be forthright and timely in providing such access to SOMM Creative in support of these Terms. It is recommended that Client produces a unique password for SOMM Creative use to ensure privacy.
i. Client is responsible for ensuring SOMM Creative’s access to Client’s social network accounts remains intact and active throughout the term of these Terms.
ii. If Client’s business is terminated for any reason whatsoever, it is the responsibility of Client to change its passwords to remove SOMM Creative’s access to said social network accounts. As such, SOMM Creative cannot be held liable for any unauthorized access to Client’s social network accounts after such termination occurs.
iii. In the event Client elects not to provide SOMM Creative with access to its social network accounts, and/or delays providing such access, there will be no deductions or waivers on any portion of the fees required by Client to pay SOMM Creative for the services as specified in the separate documented plan or order.
19. EFFECTIVENESS. These Terms become effective upon the date of execution on the acknowledgement page by the Client.
20. NECESSARY ACTS; FURTHER ASSURANCES. Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions these Terms contemplates or to evidence or carry out the intent and purposes of these Terms & Conditions.