Standard Terms And Conditions

Marketing Services

1. DESCRIPTION, BUDGET, AND SCOPE OF SERVICES. The scope and estimated budget of Gourmet Marketing’s services in connection with the SServices are described in the Statement(s) of Work attached hereto (each, a “SOW”). All the terms of this Agreement shall govern the relationship between Client and Gourmet Marketing and shall be made part of the accompanying SOWs as if fully recited therein. The parties contemplate that at least one but possibly more Statements of Work may be agreed upon under this Agreement. Each SOW shall be sequentially numbered or dated.
2. GOURMET MARKETING RESPONSIBILITIES. Gourmet Marketing will use its best efforts to complete the Services in accordance with the estimates, deliverables, and schedules set forth in any applicable SOW. Gourmet Marketing will perform all services in connection with the Services in a good and workmanlike manner, in accordance with the best practices of Gourmet Marketing's industry, and the services and deliverables will conform to the applicable SOW. Notwithstanding anything to the contrary in this Section 2, any dates determined or proposed by Gourmet Marketing in any SOW or otherwise shall be treated as an estimate only, and Gourmet Marketing shall not be liable for any failure to meet such date(s).
3. CLIENT RESPONSIBILITIES AND COOPERATION. Client will use best efforts to expeditiously render and communicate any decisions necessary for the continued uninterrupted progress of the Services.  Client will provide all necessary information regarding the Client’s requirements for the Services. Any designs, photographs, graphics, artwork, code, text, schedules and specifications, services, information, surveys and reports provided by the Client  pertaining to the Services will be furnished at the Client’s expense, and Gourmet Marketing will be entitled to rely on the accuracy and completeness thereof. Client represents and warrants to Gourmet Marketing that any text, graphics, photos, designs, animations, music, videos, code, trademarks, and other materials (the “Client Works”) furnished to Gourmet Marketing for use in the Services are owned by Client, or that Client has permission from the rightful owner to use each of the Client Works, and will hold harmless, protect, and defend Gourmet Marketing and its affiliates from any claim or suit arising from the use of such Client Works. Client further represents and warrants that Client shall obtain all necessary licenses and Client shall make all payments required to be made by such licenses directly to the appropriate licensing organization in full. Gourmet Marketing shall have no responsibilities to any licensing organization for any license by Client or on Client’s behalf. Client further agrees to indemnify, defend and hold harmless Gourmet Marketing for any use of Client Works in connection with the Services.
4. DISCLAIMER AND LIMITATION OF LIABILITY. Client acknowledges and agrees that all text, graphics, photos, designs, animations, music, videos, code, and other materials (the “Materials”) provided by Gourmet Marketing represent the Gourmet Marketing’s interpretation of the Client’s goals, opinions and tastes and Gourmet Marketing will not be liable for any change in Client’s goals, opinions and tastes following delivery and acceptance of the Materials by Client.  Gourmet Marketing will not be responsible for changes made to the Materials by or at the direction of Client; for the acts or omissions of any applicable contractor or any subcontractor, supplier or other person performing the work on the Services; or, for any failure of them to meet any schedules or completion dates by any and all subcontractors supplied by the Client.  Client acknowledges and agrees that Gourmet Marketing has not made any warranties or guarantees with respect to the economic, financial or other effects that Client may experience as a result of the Services. Gourmet Marketing shall not be responsible or liable for Internet or electrical outages, acts of God, or delays or actions of any third parties, including but not limited to architects, contractors, and vendors.  The aggregate liability of Gourmet Marketing for any cause of action or claim (whether under contract, tort, or otherwise) shall be limited to the amount of fees to be paid to Gourmet Marketing by Client hereunder. In no circumstance shall Gourmet Marketing be liable for any loss whether direct or indirect of profits, business or anticipated savings or for any direct or indirect consequential loss arising out of, or in connection with the provision of the Services to the Client.
5. OWNERSHIP.  Unless otherwise provided in a SOW, all “Intellectual Properties” (hereinafter defined to include, but are not limited to, patents, trademarks, copyrights, and trade secrets) made or conceived by Gourmet Marketing specifically in connection with the services and/or deliverables set forth in any applicable SOW shall be and remain the exclusive property of Gourmet Marketing. Subject to the terms and conditions of this Agreement, and conditioned on Client’s timely payment of all amounts payable hereunder, Gourmet Marketing hereby grants to Client an exclusive, fully-paid up, perpetual, non-transferable, royalty-free license to: (i) use, reproduce, copy, store, exploit and perform the final deliverables set forth in any applicable SOW in connection with the corresponding Services set forth in any such SOW; and (ii) sublicense the rights described in (i) above to subsidiaries and affiliates of Client in connection with the corresponding Services set forth in any such SOW. Notwithstanding the foregoing, Gourmet Marketing shall be entitled to include the final deliverables on its website and in its professional portfolio.
6. THIRD-PARTY CONTRACTORS. If the Services requires engagement of any third party contractors (each, a "3rd Party Contractor") to perform work, the Client will enter into contracts directly with any such 3rd Party Contractor. Notwithstanding the fact Gourmet Marketing may provide Client 3rd Party Contractor recommendations, Gourmet Marketing is not responsible for the performance, quality, timely completion or delivery of any work, materials or equipment furnished by any 3rd Party Contractor and shall not be required to oversee nor manage them. Under no circumstances shall Gourmet Marketing be liable for any damages arising from the transactions between Client and any 3rd Party Contractor, even if Gourmet Marketing has, upon Client’s request, accepted monies from Client into Gourmet Marketing’s business account to pay for services to be rendered by a 3rd Party Contractor.  Gourmet Marketing hereby reserves the right to charge additional fees in the event Gourmet Marketing oversees any 3rd Party Contractor.
7. FEES.
   
   1. If the time or expense required to complete the tasks set forth in the SOW exceeds the estimates set forth in the SOW, Gourmet Marketing and Client will revisit such timelines and expenses and mutually agree on any adjustments in writing before proceeding with the work. 
   2. Any estimates or proposals, including the budget set forth in the SOW are strictly for purposes of informing the Client of potential services costs and Client affirms and agrees that such estimates are not binding, as actual costs or fees may vary. Any applicable SOW does not include any expenses for third party consultants, contractors and vendors.   
   3. Client shall be responsible for all applicable taxes.
   
   
8. EXPENSES. All expenses (copies, photographic reproductions, advertising fees, postage, overnight carriers, messengers, couriers, storage, parking, tolls, presentation materials, transportation, travel expenses, telephone calls, faxes, etc.) are fully reimbursable.  Gourmet Marketing reserves the right to charge Client for any estimated expenses, from time to time, through an invoice. If applicable, Client will notify Gourmet Marketing in writing, at least ten (10) days prior to the beginning of each month, of Client’s advertising budget for that month.
9. PAYMENT METHOD. Gourmet Marketing will automatically charge Client’s credit card for monthly service fees as set forth in any applicable SOW. Client agrees to ensure that at all times all credit card and payment information supplied by Client is accurate and correct and kept updated with Gourmet Marketing and that Client is fully authorized to use such credit card and payment information for purposes of paying for any fees and expenses hereunder. If Gourmet Marketing is unable to process any transaction using the credit card information provided, it reserves the right to immediately cancel the Services.
10. LATE PAYMENTS. Unless otherwise stated in any applicable SOW, all invoices are to be paid within 30 days of the invoice date. Any fees and expenses not paid when due shall bear interest at the rate of 1.3% of the then outstanding balance owed to Gourmet Marketing per month until fully paid.  In the event Client fails to make any payments, Gourmet Marketing shall retain the right to remove, block, or otherwise suspend any services and/or materials under any applicable SOW until any outstanding fees and any late charges are fully paid.
11. PROMOTION. Client hereby grants to Gourmet Marketing the right to use Client’s name, logo, and any other trademarks for Gourmet Marketing’s business and promotional purposes in any and all media, including but not limited to its website located at www.gourmetmarketing.net.  Client acknowledges and agrees that Gourmet Marketing will be entitled to advertise, for its own marketing purposes, its provision of the Services to Client and to include a hyperlink to Client’s website and/or social media pages in such promotion.
12. TERMINATION. This Agreement may be terminated by either party upon the other party’s default or breach of any obligation or representation contained in the Agreement, provided that termination may not be made unless written notice specifying nature of the default or breach is given to the concerned party and such party fails to cure such default in performance within fifteen (15) days’ from the date of receipt of such notice.  Either party may terminate for any reason upon thirty (30) days’ written notice to the other party. Termination shall be without prejudice to any and all other rights and remedies of Gourmet Marketing and Client shall remain liable for all outstanding obligations owed by Client to Gourmet Marketing including any accrued and unpaid fees as of the termination date.   
13. CONFIDENTIALITY. The parties acknowledge that in the course of Gourmet Marketing providing the Services hereunder, the parties, or their respective employees or consultants, may be supplied with or come into possession of information which is proprietary to the other party including without limitation, the material terms of this Agreement and information about a party’s clients and customers, sales, costs and other unpublished financial information, business plans, projections, marketing data and trade secrets (collectively, the “Information”). The parties agree that any Information received by the parties or their representatives during the term of this Agreement will be kept confidential and will not be revealed to any other person, firm, organizations or entity except to the parties’ agents, employees, and representatives in connection with the Services to be performed on behalf of Client who will (i) be informed of the confidential nature of the Information; and (ii) treat such Information in full confidence and shall not reveal any Information to any other person, firm, organization or entity.
14. NON-CIRCUMVENTION. Client agrees that it will not, during the term of its relationship with Gourmet Marketing, and for a period of twelve (12) months after the relationship between them terminates for any reason or no reason, take  any action to circumvent the relationship between Client and Gourmet Marketing by directly entering into any business transaction, and/or making any contract with Gourmet Marketing’s contractors, vendors and/or consultants without the express prior written consent of Gourmet Marketing.
15. FORCE MAJEURE. Except for the payment of fees and expenses by Client, if the performance of any part of this Agreement by either of the parties is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, mechanical or electronic breakdowns, act of God or any other causes substantially beyond the control of either of the parties, that party shall be excused from such to the extent and only for such period that it is prevented, hindered or delayed by such causes. Gourmet Marketing’s obligations hereunder are also subject to Gourmet Marketing’s ability, using its commercially reasonable efforts, to comply with any and all laws, regulations, orders and other governmental directives.
16. INDEMNIFICATION.  Client hereby agrees to indemnify and hold Gourmet Marketing harmless from and against any suits or claims (including, but not limited, to suits or claims relating to injuries to property or persons, including death), damages, losses and expenses (including, but not limited to, reasonable attorneys’ fees and disbursements) arising out of, related to or resulting from: (i) the performance of the Services; (ii) the Services, itself; (iii) use of any Client Works; or (iv) breach of any of Client’s warranties hereunder.
17. NO EXPRESS OR IMPLIED WARRANTY. ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED TO Client "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE" BASIS. GOURMET MARKETING DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT, OR SERVICE FURNISHED BY IT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18. INDEPENDENT CONTRACTOR. The relationship between Gourmet Marketing and Client shall be that of an independent contractor. Nothing contained in this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship
19. ARBITRATION, CHOICE OF LAW, MISCELLANEOUS. In any dispute over the provisions of this Agreement, except for non-payment by Client, if the parties cannot resolve the dispute to their mutual satisfaction, the matter shall be submitted arbitration in accordance with the rules of the American Arbitration Association in New York, New York. All parties shall initially share the cost of arbitration, but the prevailing party or parties may be awarded attorney fees, costs and other expenses of arbitration. All arbitration decisions shall be final, binding and conclusive on all the parties to arbitration, and legal judgment may be entered based upon such decision in accordance with applicable law in any court having jurisdiction to do so. This Agreement will be governed by the laws of the State of New York, and the parties hereby submit to exclusive personal jurisdiction and venue in the state and federal courts located in New York, New York. This Agreement represents the entire agreement between Client and Gourmet Marketing and supersedes all prior negotiations, representations or agreements, either written or oral, all of which are rescinded.  This Agreement may be amended only by a written instrument signed by the parties.