Email Marketing Creative by Agency Agreement

AGENCY EMAIL CREATIVE AND DESIGN SERVICES AGREEMENT

THIS AGREEMENT is made this Current Day day of Current Month, Current Year by and between Company Name ("Agency") and Company Name ("Customer"). Agency is in the business of providing Email Creative and Design services for a fee. Customer desires to have Agency render certain Email Creative and Design Services (the "Services") as set forth in the Specifications ("Exhibit B").

Agency desires to render Email Creative Services as set forth in Exhibit B. In consideration of the mutual covenants set forth in this Agreement, Customer and Agency hereby agree as follows.

Engagement of Services

Agency agrees to render to Customer Email Creative and Design Services, including:

Create Insert Design Mockup and Comp Count design mockups and comps for all templates or content to be created or used in future Email Marketing, Email Marketing Campaigns, Ad-hoc, individual sending of email or any other use that the Customer deems significant and required in the Specifications. Create a final design concept for each template or content based on the feedback from the initial number of design mockups. Customer may request additional design mockups beyond the initial number of design mockups for an additional fee of Insert Rate for Additional Mockups per mockup. Conduct compatibility testing for all templates or components across an agreed number of standard email clients.

Standard email clients may include, but are not limited to: Outlook, Thunderbird (Mac and PC), Eudora, Mac Mail, Web-based email clients (Gmail, Yahoo, Hotmail, Horde, Open Web Mail) and any others required in the Specifications. For the purpose of this Agreement compatibility testing shall be LIMITED to just the Email Creative Services, templates or other components created by Agency under this Agreement. Agency is not responsible for the compatibility of any future content Customer may use in connection with the Email Creative and Design Services provided by Agency.

Compatibility testing shall also be limited to current available builds of email clients and Agency shall not be responsible for how any template or content provided to customer renders or displays in future email clients. Demonstrate to Customer the results of all compatibility testing by either the use of screenshots sent to the customer, or through a live login to a provided email account or email client. Work with Customer's marketing department in order to aid initial content creation and development and present results to Customer for approval.

Provide a detailed accounting for all pre-approved expenses associated with the services, as described in the Specifications. Expenses may include, but are not limited to: stock and royalty-free photography, third-party testing services, additional templates and source code, any third-party contractors or sub-contractors required for fulfillment of the Specifications, and all transportation, courier or transit charges. Audit all invoices and expenses provided by third-party vendors to ensure accuracy.

Provide other services as Customer may request from time to time, such as content creation, assistance to Customer's staff and employees, market research, analysis, or additional project consulting. All services are subject to Agency's hourly rate of Hourly Rate per hour. Execute all other creative and design services as agreed upon in Exhibit B.

Specifications

Agency agrees to develop the Email Creative and Design Services pursuant to the Specifications set forth in Exhibit B attached hereto (the "Specifications"). All services not included in the Specifications shall be deemed to be "extra" and subject to the Agency's hourly billable rate.

Services Completion

Agency will use reasonable diligence in the development of the Email Creative and Design Services and endeavor to deliver to Customer all agreed-upon specifications (or "Milestones") outlined in Exhibit B no later than Delivery Date. Customer acknowledges, however, that this delivery deadline and the other payment milestones listed in Exhibit A are estimates, and are not required delivery dates. Agency will retain all creative source code, original works, files, digital media and other intellectual property for the entire project and provide Customer with the output formats only. Customer shall retain all of its intellectual property rights in any logos, graphics, text, images, or other components it owns and transmits to Agency for use in fulfillment or creation of services.

Ownership Rights

Agency shall endeavor to ensure that Customer shall be able to retain, under the fullest extent under the law, any and all intellectual property rights in any text, images, or other components created for Customer pursuant to this Agreement. Customer agrees that any material, content, plan, or idea prepared by Agency or submitted to Customer for approval at any stage that is not utilized at the termination of this Agreement shall remain the property of Agency. Customer agrees to return to Agency any materials it may have of Agency's, such as artwork, mockups, comps, text, digital media, film, photos, or any other physical embodiment of Agency's creative work performed while under this Agreement.

Upon termination or expiration of this Agreement, Customer agrees to be solely responsible for any additional use of materials and advertisements created by Agency pursuant to this Agreement. Additional expenses may include but are not limited to: fees, licenses, translations, royalties, talent, and other associated fees. Agency's obligation in 4.a shall not apply with any respect to foreign use.

Compensation

For all of Agency's services under this Agreement, Customer shall compensate Agency, in cash, pursuant to the terms of Exhibit A attached hereto. In the event Customer fails to make any payment referenced in Exhibit A by the deadline set forth in Exhibit A, Agency has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) withhold all materials, services, and creative content administered by Agency on behalf of Customer, or (3) bring legal action.

Confidentiality

Customer and Agency acknowledge and agree that the Specifications and all other documents and information related to the engagement of marketing or advertisement development (the "Confidential Information") will constitute valuable trade secrets of Agency. Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Agency's prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the Confidential Information definition is anything that can be seen by the public in any advertising medium or channel prior to the engagement of Agency to provide services, or information that was provided to Agency by Customer for publication as a requirement of fulfillment of the Specifications.

Limited Warranty and Limitation on Damages. Customer agrees to indemnify and hold Agency harmless with respect to any claim, loss, lawsuit, liability or judgment suffered by Customer that results from the use of any material prepared or execution of service by Agency or at the direction of Agency that has been materially changed from the Specifications by any vendors, employees, advertisers, publishers, hosts, radio and television broadcasts, quotes, testimonials, print journalism, or other third-party entity. Customer further agrees to indemnify and hold Agency harmless with respect to any results, display or rendering issues, compatibility issues or any other design problem or issue resulting from the use of any Email Creative and Design Services, template or content provided to Customer by Agency.

Agency shall provide an example of how each email client or browser displays the Email Creative and Design Services to the Customer and also provide the opportunity to sign off with Customer's approval of such. Demonstration that the Email Creative and Design Services render and display correctly in one particular email client or browser does not mean that they will display for every possible instance, user or configuration that may exist. Customer further acknowledges that Agency is not responsible for interference from any recipient's Operating System (OS), Web Browser, Firewall, Spyware, Spyware Blocker, Anti-Spam or Anti-Virus programs, security settings, network setting, or anything else that may interfere with the Email Creative and Design Services, Template or Content displaying properly and as intended. Agency agrees to obtain and/or maintain in force for the length of this Agreement, at Agency's expense, an appropriate liability policy or policies, having a minimum limit of Insurance Coverage, naming Customer as an additional insured and loss payee under such policy or policies as applicable.

In the event of any litigation, proceeding, or suit against Customer by any regulatory agency or in the event of a court action challenging any advertising or marketing service prepared by Agency, Agency shall assist in the preparation of defense of such action and cooperate with Customer. Customer acknowledges that Agency is not responsible for the results obtained by Customer from any creative services advertising, programs, ideas, or execution thereof. Customer waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Agency as set forth in Exhibit A attached hereto.

1 Right of Refusal

Agency reserves the right to refuse any service at any time that appears to violate its Acceptable Use Policy (AUP) or appears to violate industry standards, community standards or Local, State, or Federal Law. Agency will make available to Customer its AUP prior to the engagement of this Agreement. Agency reserves the sole right to determine what constitutes a violation of its policies and procedures.

2 No Warranty on Results Obtained from Use of Services

Agency is not responsible for the results obtained from any of the services rendered under this Agreement.

3 Compliance with the CAN-SPAM Act of 2003

Agency and Customer, and all email, campaigns, or related communications sent on behalf of the Customer by the Agency or the Agency's agents or vendors must comply with the CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act), which establishes requirements for those who send commercial email.

Independent Contractor

Agency will be retained as independent contractor. Agency will be fully responsible for payment of its own income taxes on all compensation earned under this Agreement. Customer will not withhold or pay any income tax, social security tax, or any other payroll taxes on Agency's behalf. Agency understands that it will not be entitled to any fringe benefits that Customer provides for its employees generally or to any statutory employment benefits, including without limitation, worker's compensation or unemployment insurance.

Resources and Equipment

Customer agrees to make available to Agency, for Agency's use in performing the services required by this Agreement, all logos, graphics, photos, branding, collateral, items of hardware and software as Customer and Agency may agree are reasonably necessary for such purpose.

General Provisions

1 Entire Agreement

This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both of the parties hereto.

2 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of State. Exclusive jurisdiction and venue shall be in the County County, State Superior Court.

3 Binding Effect

This Agreement shall be binding upon and inure to the benefit of Customer and Agency and their respective successors and assigns, provided that Agency may not assign any of its obligations under this Agreement without Customer's prior written consent.

4 Waiver

The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party's right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.

5 Good Faith

Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.

6 Right to Withhold Content and Services

In the event Customer fails to make any of the payments set forth on Exhibit A within the time prescribed in Exhibit A, Agency has the right to withhold further content and services performed for or on behalf of Customer until payment in full is made, plus accrued late charges of 1 1/2% per month.

7 Indemnification

Customer warrants that everything it gives Agency to use in fulfillment of services is legally owned or licensed to Customer. Customer agrees to indemnify and hold Agency harmless from any and all claims brought by any third party relating to any aspect of the services, creative content or other content, including but without limitation, any and all demands, liabilities, losses, costs, and claims including attorney's fees, arising out of injury caused by Customer's products/services, material supplied by Customer, copyright infringement, and defective products sold via the advertising or services. Further, Customer agrees to indemnify Agency from responsibility for problems/disruptions caused by third-party services and contractors that Customer may use, such as media buyers, transportation, merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing and other services that relate to the execution of the services by Agency as outlined in this Agreement.

8 Use of Services and Creative Content for Promotional Purposes

Customer grants Agency the right to use the creative content, description of services performed, results of services, and campaign data as it sees fit for promotional purposes.

9 No Responsibility for Theft

Agency has no responsibility for any third party taking all or any part of the content, ideas, or services provided to Customer by Agency.

10 Attorney's Fees

In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney's fees and costs, including expert witness fees.

11 Term of Agreement

This Agreement shall begin on Start Date and shall continue in full force until terminated by either party upon at least thirty (30) days prior written notice.

The parties represent and warrant that, on the date first written above, they are authorized to enter into this Agreement in its entirety and duly bind their respective principals by their signatures below: