CODE3 CREATIVE STANDARD TERMS AND CONDITIONS

These Standard Terms & Conditions (“Standard Terms”) shall govern all creative services provided by Code3 to the customer identified in the SOW incorporating such Standard Terms by reference (the “Customer”), and together with each SOW shall be the “Agreement.”

1. TERMS AND CONDITIONS; SOW.

Code3 and Customer may from time to time enter into an agreement, statement of work other otherwise accepted written proposal (each an “SOW”) for Code3 to provide certain professional services in support of Customer’s advertising, branding and digital media efforts (the “Services”) as well as specified Deliverables (defined below). Any SOW referencing by incorporation these Standard Terms will be deemed to incorporate the terms and conditions of these Standard Terms. In the event of a conflict between the terms of these Standard Terms and the terms of any SOW, the terms of these Standard Terms will control; provided, however, that the parties may in any SOW specifically and only with reference to these Standard Terms agree to: (a) exclude or except an otherwise controlling provision of these Standard Terms; (b) adopt a clause or provision to apply in lieu of an otherwise controlling provision of these Standard Terms; or (c) reference a governing external code, document or standard (including, if applicable, standard terms and conditions of service) that will apply in lieu of any otherwise controlling provision of these Standard Terms.

2. MANAGEMENT OF SOW.

Services and Deliverables shall be as set forth in the SOW. A “Deliverable” is any item that Code3 is obligated to expressly prepare or provide to Customer as set forth in any SOW and identified as a Deliverable, which may include a video, still, creatives, transcreatives, report, design, logo, action plan, strategy, ideas, or anything required (or labeled as such) by the SOW.

Assumptions. The description of the Services in each SOW, including, without limitation, the schedule, Deliverables and the compensation amount set forth therein, will be based upon information Customer provides to Code3, Customer’s timely provision of any required information or assistance, and upon any assumptions set forth in the SOW. Customer acknowledges that if the information or assistance provided by Customer is incomplete, inaccurate, or delayed or if the stated assumptions are not correct, then the parties may modify the SOW pursuant to subsection 3b, below.
Changes to SOW. Customer and/or Code3 may, at any time, request changes within any particular SOW. To be effective, any requested change or adjustment must be agreed to in writing by both parties via an official services amendment (“Services Amendment”).
Delivery; Acceptance. Code3 shall deliver all Deliverables specified in the applicable SOW in accordance with the delivery schedule set forth in such SOW. All Deliverables and/or Services will conform with the specifications or acceptance criteria expressly identified in an SOW. If Customer provides notice of any non-conformity under the applicable SOW within five (5) days after delivery or performance, or such other time frame for acceptance specified in the applicable SOW (the “Acceptance Period”), Code3 agrees to correct the non-conformity at its own expense within a reasonable time and, as applicable, re-perform the Services or resubmit the corrected Deliverable for review and approval, at which time a new Acceptance Period will commence for such Deliverable. The parties agree to repeat this process in an iterative fashion until the relevant Services or Deliverable conforms in all material respects to applicable requirements.

3. COMPENSATION & PAYMENT TERMS.

Compensation for Services; Expenses. Customer will pay to Code3 all the amounts specified in the relevant SOW, including, without limitation, compensation for Services. Additionally, Customer will reimburse Code3 for all reasonable pre-approved out-of-pocket expenses incurred in the performance of the Services, and for any non-standard expenses incurred at the written request of Customer.
Invoices. Code3 will invoice Customer in accordance with the payment schedule set forth in the relevant SOW or, if an SOW does not specify a payment schedule, Code3 will invoice Customer on a monthly basis. Unless otherwise specified in the SOW, all payments will be due 30 days after receipt of invoice. The provision of the Services to Customer is subject to Customer’s payment of all invoiced amounts when due. In addition, if any payment is not made when due, Code3 will be entitled to suspend the performance of the Services immediately and, at its option, to terminate the relevant SOW in accordance with its terms. All monetary amounts will be due in U.S. Dollars. Should Customer dispute any of the charges set out on an invoice, it will notify Code3 within 10 days of its receipt of such an invoice. Customer’s notice will set out in sufficient detail the basis for its dispute. Code3 will have 30 days from the date of such a notice of dispute to reply. Customer will be obligated to pay all amounts not in dispute.
Taxes. Code3’s fees do not include, and Customer is liable for, all governmental taxes, assessments, fees or duties (“Taxes”) that may be applicable in connection with Customer’s use of the Service or any other products or services provided to Customer by or on behalf of Code3. Customer will be responsible for paying all Taxes, except for Taxes based on Code3’s net income or on its acquisition of products or services that Code3 uses to provide the Service. If Code3 has a legal obligation to pay or collect taxes for which Customer is responsible hereunder, then the appropriate amount will be invoiced to and paid by Customer.
Late Payments. Undisputed late payments shall accrue interest at the rate of one and a half percent (1.5%) per month (or, if less, the maximum amount permitted by law) on the overdue amounts until paid.

4. CUSTOMER OBLIGATIONS.

Customer Assistance. Customer agrees that it will cooperate with and assist Code3 in the performance of the Services, and will provide the resources necessary for Code3's performance hereunder as specified in the relevant SOW or as otherwise required in the performance of the Services.
Safe Work Environment. Customer will be responsible to ensure that, while Code3 employees, agents or contractors are on Customer premises, those health and safety precautions required by law and in accordance with good industry practice are in place and fully operational to protect such persons, and Customer will indemnify Code3 for any and all liability, damages, costs and expenses caused by the negligence or willful misconduct of Customer and/or Customer's employees, agents and subcontractors.

5. INTELLECTUAL PROPERTY AND OBLIGATIONS.

Ownership. (i) Any design, name, mark or other tangible material in final form that is delivered by Code3 to Customer pursuant to this Agreement (whether delivered in electronic or other form) that is approved, selected and fully paid for by Customer as set forth in the applicable SOW (except for rights in or to any property licensed from third parties or any Code3 Property (defined below)) (“Materials”) will become the exclusive property of Customer. Customer understands that there may be limitations contained in agreements with third parties that limit the use and ownership of the third party materials utilized in the Materials prepared by Code3 under this Agreement and the transfer of Materials shall be subject to such limitations which have been identified in writing to Customer in the applicable SOW or otherwise mutually agreed upon in writing prior to use of such materials. Code3 shall not be responsible for alterations made by Customer to Materials delivered hereunder. All other designs, names, marks and materials developed by Code3 in rendering the Services (except to the extent they include Customer provided information, Customer Confidential Information or Customer IP, all of which remain the exclusive property of Customer) which are not approved, selected and fully paid by Customer shall remain the property of Code3.
Customer acknowledges that Code3 possesses certain methodologies, ideas, concepts, strategies, tools, source or object code, techniques, software, know-how, trade secrets, patents, expertise, proprietary information, generic and business information, processes, procedures, and other intellectual property, which has been created, owned, or developed by or licensed to Code3 prior to, or independent from, the performance of Services under this Agreement, and all modifications thereof (collectively, the “Code3 Property”). Code3 retains all rights, title, control, and interest to (including, without limitation, the unlimited right to use) the Code3 Property. This Agreement does not transfer to Customer title to any intellectual property comprised or contained in any Code3 Property. To the extent such Code3 Property is necessary to use the Materials, Code3 shall notify Customer and grants Customer a limited, non-exclusive, non-transferable, perpetual, royalty free, worldwide license to install, operate and use such Code3 Property solely for such purposes.
Protection of Names and other Materials. To Code3's best knowledge, the Materials provided by Code3 hereunder do not infringe upon the ownership rights of others. However, Code3 cannot warrant that Customer will be immune from claims of others due to the complexity of the laws and regulations governing such rights and the virtual impossibility of searching designs and names worldwide, particularly common law usage rights which are not registered. Legal clearance, protection and, where appropriate, registration of the Materials, and any costs therefor, are the Customer's sole responsibility and should be done promptly after final approval in order to create and preserve such rights. Accordingly, Customer shall indemnify and hold Code3 harmless from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including reasonable attorneys’ fees) which Code3 may incur or be liable for as a result of any claim, suit or proceeding or threatened claim, suit or proceeding made or based upon or arising out of allegations that the Materials infringe or otherwise violate the rights of a third party (except to the extent such claim is based upon Materials provided by Code3 in breach of the first sentence of this Section 5.c, which such Materials shall be subject to Code3’ obligation set forth in Section 6).

6. INDEMNIFICATION.

Customer shall be responsible for the accuracy, completeness and propriety of information concerning its organization, products, services, industry and the like which it furnishes to Code3. It will be Customer's responsibility to review all materials prepared by Code3 under this Agreement to confirm that representations, direct or implied, with respect to Customer's organization, products, services and industry are accurate and supportable by objective data then possessed by Customer. Accordingly, Customer shall indemnify, defend and hold Code3 harmless from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including reasonable attorneys’ fees) which Code3 may incur or be liable for as a result of any claim, suit or proceeding or threatened claim, suit or proceeding made or based upon or arising out of allegations that:
1. Any descriptions or depictions (including designs) of Customer's organization, products, services or industry or any other advertising materials created, prepared, produced or designed by Code3 for Customer that Customer has either approved or is false, deceptive, misleading or otherwise inaccurate or improper;
2. Any materials or information provided by Customer infringe any third party’s rights, including, without limitation, intellectual property rights, or misappropriates a third party’s confidential information when used in accordance with limitations made known to Code3 in writing;
3. Any matter as to which Code3 has advised Customer in writing of the risks involved and Customer elects to proceed regardless;
4. The nature or use of Customer's products or services; and
5. The manufacture, sale, distribution, description or use of any of Customer's products or services violates or infringes upon, or the advertising, publicity or promotion of Customer's products or services violates or encourages the violation of or infringement upon, the copyright, trademarks, patents or other rights of any third party.
Code3 shall indemnify, defend and hold Customer harmless from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including reasonable attorneys’ fees) which Customer may incur or be liable for as a result of any claim, suit or proceeding or threatened claim, suit or proceeding made or based upon or arising out of allegations that the Deliverables infringe any third party’s rights, including, without limitation, intellectual property rights, or misappropriates a third party’s confidential information when used in accordance with limitations identified by Code3 (except to the extent including material covered in Section 6.a.ii.)
Each party (the “Indemnifying Party”) shall indemnify and hold the other party (the “Indemnified Party”) harmless from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including reasonable attorneys’ fees) which may incur or be liable for as a result of any claim, suit or proceeding or threatened claim, suit or proceeding made or based upon or arising out of allegations of: (i) the intentional misconduct or gross negligence of the Indemnifying Party, or by any of its employees, agents, or subcontractors in involved with performance hereunder, and (ii) breach of any provision, covenant, warranty, or representation set forth in this Agreement of the Indemnifying Party.

7. REPRESENTATIONS AND WARRANTIES.

Mutual. Each party represents and warrants that (a) it has the full right, power and authority to enter into this Agreement, grant the licenses set forth herein and to discharge its obligations hereunder, and (b) the execution and delivery of this Agreement and the performance of its obligations hereunder does not and will not violate any agreement to which it is a party or by which it is or will be otherwise bound.
Customer represents and warrants that: (i) it owns all right, title, and interest in, or have full and sufficient authority to use in the manner contemplated by this Agreement, any materials, marks, or data furnished by Customer to Code3 and such materials, marks or data may be altered or arranged by Code3 in any medium as contemplated for use in performing services for Customer under this Agreement and applicable Statement of Work.
Code3 represents and warrants that (i) the Services will be performed in a professional, timely and workmanlike manner in accordance with this Agreement; and (ii) all personnel designated to perform the Services will be properly qualified to perform the duties to which they are assigned.

8. LIMITATION OF LIABILITY.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS OR SERVICES TO BE PROVIDED HEREUNDER OR ANY ADVERTISING PROPERTIES, INCLUDING WITHOUT LIMITATION, ANY DIGITAL MATERIALS, OPEN SOURCE CODE, OR ANY SOFTWARE OR OTHER ELECTRONIC DEVICES PROVIDED OR WEBSITE CREATED OR HOSTED BY A PARTY, WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION, AND THE WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT ARE EXPRESSLY EXCLUDED. CODE3 SHALL NOT BE RESPONSIBLE FOR ANY OFF THE SHELF OR OTHER THIRD PARTY PRODUCTS OR DIGITAL MATERIALS LICENSED BY CODE3 ON CUSTOMER’S BEHALF, PROVIDED CUSTOMER HAS APPROVED SUCH IN ADVANCE AND CUSTOMER SHALL LOOK SOLELY TO SUCH THIRD PARTY AND ANY APPLICABLE WARRANTIES MADE BY SUCH THIRD PARTY. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS AND FOR INDEMNITY OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE AGGREGATE LIABILITY UNDER THIS AGREEMENT OF EITHER PARTY WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO CODE3 UNDER THIS AGREEMENT. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS AND FOR INDEMNITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, BUT EXCLUDING GROSS NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY, OR FOR ANY LOST REVENUE, LOST SALES, LOST PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR OTHER ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT OR THE USE (OR INABILITY TO USE) THE WORK PRODUCT OR ANY MATERIALS PROVIDED HEREIN, WHETHER OR NOT THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES

9. CONFIDENTIAL INFORMATION.

Code3 and Customer acknowledge that Confidential Information may be disclosed to each other throughout the term of these Standard Terms. For purposes of these Standard Terms, and except as otherwise expressly provided in these Standard Terms, "Confidential Information" means all non-public business, technical and financial information of the parties, and all other information clearly marked "confidential," or if disclosed orally, all information that is designated orally as "confidential," or is otherwise treated as confidential, at the time of disclosure or within a reasonable period of time thereafter.
For purposes of this Section 9, "Discloser" means the party disclosing Confidential Information, and "Recipient" means the party receiving the Discloser's Confidential Information.
The Recipient agrees that it will hold in confidence the Confidential Information disclosed by the Discloser. The Recipient will exercise reasonable care to protect the Discloser’s Confidential Information from unauthorized disclosure, which standard of care will in no event be less than the Recipient takes to protect its own Confidential Information of a like nature. The Recipient may disclose Confidential Information only to its employees or agents who need to know such information for purposes of these Standard Terms, and will inform such employees and agents, by way of policy and agreement, that they are bound by obligations of confidentiality in this Agreement.
The Recipient's duty to hold Confidential Information in confidence expires two years after its return or destruction. The expiration of the duty of confidentiality will not modify other restrictions on the Recipient, including, for example, any restrictions under patent or copyright laws.
Confidential Information will not include information that:
1. was rightfully in the Recipient's possession before receipt from the Discloser;
2. is or becomes a matter of public knowledge through no wrongful act of the Recipient;
3. is disclosed by the Discloser to a third party without a duty of confidentiality on the third party;
4. is independently developed by the Recipient;
5. is disclosed under operation of law (provided, that before disclosing any Confidential Information under a court order or operation of law, the Recipient will provide the Discloser reasonable notice of such order or law and provide the Discloser an opportunity to object to or limit such disclosure); or
6. is disclosed by the Recipient with the Discloser’s prior written approval.

10. TERM AND TERMINATION.

Term. These Standard Terms will become effective upon the execution of any SOW incorporating such and will continue in force with respect to any and all SOWs for the term specified therein (the “Term”), unless earlier terminated in accordance with one of the following provisions.
Termination for Cause. Failure by either party to comply with any term or condition under these Standard Terms or any SOW will entitle the other party to give the defaulting party written notice requiring it to cure the default. If the party in default has not cured, or commenced to cure (if a cure cannot be performed within the time period set forth below), the default within 10 business days after receipt of written notice, the notifying party will be entitled, in addition to any other rights it may have under these Standard Terms, an SOW, or otherwise at law or in equity, to immediately terminate these Standard Terms and/or any or all pending SOWs.
Consequences of Expiration and/or Termination
1. Survival of Standard Terms. Unless any pending SOWs are also expressly terminated as permitted by these Standard Terms and/or the relevant SOW, upon expiration or termination of these Standard Terms for any reason, all SOWs then in effect hereunder and all license rights granted pursuant to these Standard Terms and/or any SOW will continue in accordance with their terms, in which case these Standard Terms will continue in effect with respect to such pending SOWs until the completion of such SOWs.
2. Termination Payment. If an SOW(s) is terminated, Customer will pay Code3 the amounts specified in each such SOW relating to work performed by Code3 prior to and including the date of termination, as well as any additional costs or expenses which Code3 has incurred or contracted for with respect to the Services and is unable to avoid.
3. Survival of Obligations. Termination of these Standard Terms and/or any SOW will not discharge or otherwise affect any pre-termination obligations of either party existing under the Standard Terms or such SOW at the time of termination.

11. GENERAL PROVISIONS.

Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform due to acts, events and causes beyond the control of such party, including, but not limited to, natural disasters, failures of third parties, governmental acts, strikes, terrorist activities or war.
Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its choice of law provisions. The parties consent to the exclusive jurisdiction of the federal and local courts in New York, New York, for all disputes and controversies that may relate to or arise from the Agreement.
Survival of Terms. The provisions of these Standard Terms which by their nature extend beyond the termination of any SOW will survive, including, but not limited to, Sections 5, 6, 7, 8, 9, 10.c. and 11.
Waiver. No waiver of any right or remedy on one occasion by either party will be deemed a waiver of such right or remedy on any other occasion.
Integration. These Standard Terms sets forth the entire agreement and understanding between the parties pertaining to the subject matter and merges all prior discussions between them on the same subject matter. Neither of the parties will be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter other than as expressly provided in these Standard Terms. These Standard Terms may only be modified by a written document signed by duly authorized representatives of the parties. These Standard Terms will not be supplemented or modified by any course of dealing or trade usage. Variance from or additions to the terms and conditions of these Standard Terms in any purchase order or other written notification or documentation, from Customer or otherwise, will be of no effect. These Standard Terms will prevail over any conflicting stipulations contained or referenced in any other document.
Assignment. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent will not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to an Affiliate of such party or to a successor in interest to substantially all of the business of that party to which this Agreement relates. An assignee of either party authorized hereunder will be bound by the terms of this Agreement and will have all of the rights and obligations of the assigning party set forth in this Agreement. If any assignee will fail to agree to be bound by all of the terms and obligations of this Agreement, then such assignment will be deemed null and void and of no force or effect. For the purposes of these Standard Terms, “Affiliate” of a party will mean any corporation, partnership or legal entity which controls, is controlled by, or is under common control with such party.
Notice. Unless otherwise agreed to by the parties, all notices required under these Standard Terms will be deemed effective when received in writing by either:
1. registered mail;
2. certified mail, return receipt requested;
3. overnight mail, addressed and sent to the address first above written and to the attention of the party executing these Standard Terms or that person's successor, or to the person designated in the relevant SOW; or
4. Facsimile transmission appropriately directed to the attention of the party executing these Standard Terms or that person's successor, or to the person designated in the relevant SOW, with a copy following by one of the other methods of notice.
Use of Customer Name. Code3 may use and publish Customer's name and logo on Code3’s electronic media such as e-mail or website, in its customer lists, lists of referrals for customers (or potential customers), and in other promotional form such as reports and white papers. Code3 may not use and publish Customer’s name and logo in press releases and case studies without Customer’s prior written consent. This provision will survive expiration or termination of these Standard Terms.
Severability. If any term or provision of these Standard Terms is deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same will have the power and is hereby authorized and directed to limit such scope, duration or area of applicability, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event any provision of these Standard Terms is held to be invalid or unenforceable for any reason, such invalidity or unenforceability will attach only to such provision which will be severed from these Standard Terms and will not affect or render invalid or unenforceable any other provision of these Standard Terms.
Independent Contractor. The parties acknowledge that Code3 is an independent contractor to Customer.
Subcontracting. Customer hereby approves Code3’s use of its independent contractors (“Independent Contractors”) without requiring any additional Customer consent provided Code3 remains fully responsible to Customer for the performance of such Independent Contractors as if they were employees of Code3.
Non–solicitation of personnel. During the period beginning with the commencement date for Services under a particular SOW and ending two years after the completion or termination of the SOW, each party for and on behalf of itself and its Affiliates agree not to offer employment to or hire any employee or contractor of the other party or its Affiliates who are directly involved in the Services being performed under the SOW. For purposes of the preceding sentence, the term “employment” will include any form of employment, consulting, contract relationship, or other arrangement pursuant to which such individual will, directly or indirectly, perform services for the new employer.
No Third Party Rights. These Standard Terms is made solely for the benefit of the parties to the MSA and their respective permitted successors and assigns, and no other person or entity will have or acquire any right by virtue of these Standard Terms unless otherwise agreed to by the parties hereto.