These Terms & Conditions ("Terms") are incorporated by reference into each agreement, proposal, or term sheet issued by Tribu, LLC ("Tribu," "we," "us," "our") that references them (each, a "Term Sheet"). The Term Sheet, its Scope of Work, any Automatic Payment Authorization, and these Terms together form the "Agreement" between Tribu and the client identified on the Term Sheet ("Client," "you," "your"). If a Term Sheet conflicts with these Terms, the Term Sheet controls. The version of these Terms in effect on the date the Term Sheet is signed governs that Agreement.
a) The Initial Term of this Agreement will commence on the signing date of the Agreement and will continue in full force and effect according to the Term Sheet. After the completion of the Initial Term, the Agreement shall continue on the renewal basis stated on the Term Sheet (monthly or quarterly) and may be terminated by either party upon written notice of such intention given to the other party no less in advance than the termination notice period stated on the Term Sheet.
a) All requests for specific projects under the Scope of Work must be submitted to us in writing with specific and clear instruction with a minimum two-week prior notice. We cannot guarantee work submitted in lieu of a minimum two-week prior notice will always be completed by deadline. Certain projects will require longer than two weeks to complete. We will advise you on the expected lead time for projects on a case by case basis. Additionally, you acknowledge that deadlines work two ways, and we will not be responsible for a missed launch date in the event that your organization was late in supplying necessary material or information related to projects under the Scope of Work.
b) The Point of Contact listed on the Term Sheet shall direct requests for specific projects under the Scope of Work and shall be responsible for supplying materials to us generally. You acknowledge we can take direction from the Point of Contact and hereby certify the Point of Contact's authority to act on your behalf regarding this Agreement. Changes to the Point of Contact must be made in writing to us.
Invoices for the Scope of Work will be billed in advance of each billing period according to the Term Sheet to recur each month. Additionally, you are required to incur all hard production costs, including but not limited to printing, media, engagement of talent, broadcast production, artwork, engravings, type compositions, mechanical expenses, ad spend, material, and labor outside of Tribu, LLC and all expenses listed below in this Section 3 (collectively, "Additional Costs"), such costs not being included in the Retainer - however, such fees will not be incurred without your prior approval. You acknowledge any delays in approval of Additional Costs may cause a delay in the delivery of the Scope of Work.
a) It is recommended that media placements are directly paid for by Client. If Client decides that Tribu should pay for media placement then this shall be billed to you on a gross amount which, after deduction of our cost, will yield us twenty percent (20%) of such gross amount as agency commission. If Client decides that Tribu should pay other Additional Costs, such as swag or printed materials, then that shall be billed to Client on a gross amount which, after deduction of our cost, will yield us twenty percent (20%) of such gross amount as agency commission. Client has the option to pay vendors, platforms, and third-party providers directly to avoid Tribu's 20% markup on pass-through costs. If Client elects to have Tribu manage payment and coordination with such providers, the 20% markup will apply to cover administrative and strategic oversight.
b) If we undertake, at your request, special assignments such as market, product or distribution research, or other research (with the exception of research for copy development testing purposes), or special assignments such as market counseling or sales meeting presentations, the charges made by us will be agreed upon in advance whenever possible. If no agreement was made, we shall charge you at our standard rates for the work performed by us ($165 per hour) only after an estimate is supplied to you and your approval is received.
c) You agree to reimburse us for such cash outlays as we may incur, such as forwarding and mailing, telephoning and travel, in connection with services rendered in relation to your account.
d) Annual Retainer Adjustment - To maintain service quality and account for changes in operating costs, the monthly Retainer Fee will increase by three percent (3%) annually, effective on each anniversary of the Contract Start Date.
Billing and payment procedures are as follows:
a) We shall invoice you for all media costs and production materials and services at least ten days in advance of our payment date to media to permit payment by you to enable us to take advantage of all available cash discounts; such costs, materials, and services must be paid by you before ordering the production of the work.
b) Rate or billing adjustments shall be credited or charged to you on the first billing date after we have been invoiced or as soon thereafter as otherwise practical.
c) All invoices shall be rendered on or about the first day of each month and will be due on receipt. Under no circumstance shall fulfillment exceed thirty (30) days, otherwise it will be noted as overdue. Interest will be charged on overdue invoices at a rate of eighteen percent (18%) per annum or the maximum permitted by law, whichever is less. In the event we are required to use legal process to recover any amounts due us, you agree to reimburse us for any costs associated therewith, including reasonable attorneys' fees and expenses. After 30 days, we may send overdue invoices to collections.
d) Your Retainer must be paid via Automatic Payment Authorization. Such Automatic Payment Authorization form is attached to the Term Sheet as Section "C". Client reserves the right to modify its payment method - such as switching from automatic payments to manual payment by wire or check - by providing a minimum of fifteen (15) days' written notice to Tribu.
a) If you should direct us to cancel or terminate any previously authorized Additional Cost, we shall promptly take all reasonable action to cancel or terminate the purchase or project. We will pass on any refunds received from such cancellations or terminations minus our non-refundable costs, but cannot guarantee a refund. You will be billed for any non-refundable costs that result from cancellations that cannot be recovered through a refund.
b) For all media, print, and production material purchased by us on your behalf, you agree that we shall be held solely liable for payments only to the extent proceeds have cleared from you to us for advertising disseminated in accordance with this Agreement. For sums owing but not cleared to us, you agree to be held solely liable.
a) As between you and us, all advertising materials prepared by us and accepted and paid for by you for use in advertising hereunder shall become your property. It is understood that there may be limitations on the use and ownership of materials by virtue of the rights of third parties. Whenever possible and to the extent of our knowledge, we shall advise you of the existence of such limitations.
b) Upon termination of this Agreement, you agree that any advertising, merchandising, packaging and similar plans and ideas prepared by us and submitted to you that are specific to your brand (whether submitted separately or in conjunction with or as part of other material) shall remain your property, subject to any intellectual property rights retained by us.
c) We reserve the right to display non-confidential creative and campaign work produced for Client in our portfolio and promotional materials. When showcasing publicly, we will use discretion and good judgment regarding timing, visibility, and context. Any use of case studies that include performance metrics or internal data will require written permission from Client prior to publication.
a) Inspection of Books. We agree that any and all contracts, correspondence, books, accounts and other sources of information relating to your business, upon two (2) week prior notice, shall be available for inspection at our office by you or your authorized representatives during ordinary business hours.
b) Safeguarding of Property. We shall take all reasonable precautions to safeguard any of your property entrusted to our custody or control, but in the absence of gross negligence on our part or willful disregard by us for your property rights, we shall not be responsible for any loss, damage, destruction, or unauthorized use by others of any such property.
c) Intellectual Property. You guarantee to us that you have permission to use or are the owners of any elements of text, graphics, photos, designs, trademarks, or other artwork you provide us. You agree to provide written notice to us of any intellectual property owned by you, including but not limited to trademarks, copyrights, and patents. We agree that any elements of text, graphics, photos, designs, trademarks, or other artwork we use on your behalf not provided by you are either owned by us, or we have permission to use them. Any work provided by you or created for you by us will be considered your intellectual property.
d) Indemnity. You acknowledge that it is your responsibility to approve our work before it is made public (the "Approval"). In the event we are conducting an ongoing stream of online communication for you, whether by social media or any other means, it is your responsibility to actively monitor such work and notify us of any concern regarding liability that may arise from such communications ("Liability Monitoring"). Upon notification, we will actively endeavor to remove the work as much as is possible on the Internet or in the public sphere.
Each party (the "Indemnifying Party") agrees to indemnify, defend, and hold harmless the other party, including its affiliates, directors, officers, employees, and agents (collectively, the "Indemnified Party"), from and against any and all losses, damages, claims, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to 1) the negligent acts, errors, omissions, or willful misconduct of the Indemnifying Party, its employees, contractors, or agents in connection with this Agreement; 2) any claims or actions instituted by third parties resulting from materials provided by the Indemnifying Party or any material substantially altered by the Indemnifying Party; 3) any death, personal injury, or property damage claims arising out of the Indemnifying Party's products, services, or business operations.
If you secure Product Liability Insurance with respect to the use of any products the subject of our Scope of Work, you will cause us to be named as a co-insured and maintain such policy at your cost and expense.
In the event of any proceeding against you by any regulatory agency or in the event of any court action or self-regulatory action challenging any advertising prepared by us, we shall assist in the preparation of the defense of such action or proceeding and cooperate with you and your attorneys. You will reimburse us any out-of-pocket costs we may incur in connection with any such action or proceeding.
e) Termination. Upon termination, we agree to reasonably cooperate with transferring, with approval of third parties in interest, all contracts and other arrangements with advertising media or others for advertising space, facilities and talent, and other materials yet to be used, and all rights and claims thereto and therein, upon being duly released from the obligation thereof. Upon termination, no rights or liabilities shall arise out of this relationship, regardless of any plans which may have been made for future advertising, except that any non-cancelable contracts made on your authorization and still existing at termination hereof, which contracts were not or could not be assigned by us to you or someone designated by you, shall be carried to completion by us and paid for by you in the manner described in Section 4, above.
f) Severability. If any provision of this Agreement is determined to be invalid, illegal or otherwise unenforceable, then such provision will instead be construed to give effect to its intent to the maximum extent possible, and the validity, legality and enforceability of the other provisions of this Agreement shall not be affected thereby. If, after application of the immediately preceding sentence, any provision of this Agreement is determined to be invalid, illegal or unenforceable, such provision shall be severed, and after any such severance, all other provisions hereof shall remain in full force and effect.
g) Waiver and Amendment. Any provision of this Agreement may be waived in writing by the party that is entitled to the benefit of that provision. This Agreement may be amended or supplemented at any time, although no such amendment or supplement will be effective unless it is in writing and signed by authorized representatives of both parties.
h) Mediation. The first remedy for the resolution of disputes between the parties to this Agreement shall be mediation in good faith in the City of San Antonio, Texas before an attorney mediator agreed to by both parties. The costs of the mediation are to be split evenly between the parties and the location of the mediation shall be in a neutral environment agreed to by both parties. The parties shall be permitted to have legal counsel of their choice present for the entirety of the mediation. In the event one party cannot afford their share of the mediation costs, the other party may elect to pay all of the mediation costs in accordance with the other terms of this section; or the parties may decide unanimously to utilize the resources available at the Bexar County Dispute Resolution Center.
i) Assignability. Neither party may assign its rights or delegate its obligations under this Agreement, in whole or in part, without the prior written consent of the other party.
j) Arbitration. Should mediation fail, the sole remaining resolution of disputes between the parties to this Agreement shall be arbitration before one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, such arbitration to be held in the City of San Antonio, State of Texas. In the event of arbitration, each of the parties hereto shall appoint one person as an arbitrator to hear and determine the dispute, and each shall attempt in good faith to agree with the other as to a third such arbitrator; if they should be unable to agree, then the two arbitrators so chosen shall select a third impartial arbitrator. The decision of the arbitrators shall be final and conclusive upon the parties hereto, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The expenses of such arbitration shall be borne by the losing party or in such proportion as the arbitrators shall decide.
k) Notices. Any notice pursuant to this contract must be agreed upon by both parties and given in writing.
l) Governing Law. This Agreement shall be interpreted in accordance with the laws of the State of Texas pertaining to contracts made and performed entirely therein.
m) Authority. Each person signing the Term Sheet represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver the Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations thereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.