Confidentiality

• Confidentiality. In the course of performing services for Client, Impactable will be exposed to certain confidential information of Client concerning its employees, business, operations and clients including without limitation information regarding Client’s (and its clients’) products, trade secrets, creative concepts, advertising and marketing ideas and executions of those ideas (including slogans, themes, strategies, music, characters and potential new products, the identity of Client and client personnel assigned to specific projects, financial information regarding Client and its clients, research and consumer perception data and methodologies, media plans, direct and integrated marketing strategies and agency commission/compensation arrangements (collectively, “Confidential Information”). Impactable shall not disclose any Confidential Information to any third parties without Client’s prior written consent. Impactable shall promptly upon the expiration or earlier termination of this Agreement return to Client, without retaining copies thereof, all such Confidential Information which is in written or tangible form (including, without limitation, all copies, summaries and notes of the contents thereof), regardless of the party causing the same to be in such form, and destroy all written materials prepared by Impactable which incorporate or include any such Confidential Information. Impactable shall disseminate such Confidential Information to its employees, agents and subcontractors only on a “need-to-know” basis. Impactable shall cause each of its employees, agents and subcontractors who has access to such Confidential Information to comply with the terms and provisions of this paragraph in the same manner as Impactable is bound hereby, with Impactable remaining responsible for the actions and disclosures of any such employees, agents and subcontractors. In addition, except as otherwise provided herein, Impactable shall not, without Client’s prior written consent, disclose to third parties any Confidential Information developed for Client by Impactable or the nature of and discussions regarding this Agreement. Impactable acknowledges and agrees that this Confidential Information is proprietary to Client (and its clients) and that any breach of this paragraph by Impactable, its employees, agents or subcontractors shall cause irreparable injury to Client and/or Client’s clients, that Client shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and that Impactable agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

• Notwithstanding the foregoing, Impactable’s obligations pursuant to the above paragraph shall not apply to (a) Confidential Information that, at the time of disclosure, is, or after disclosure becomes part of, the public domain other than as a consequence of Impactable’s breach, (b) Confidential Information that was known or otherwise available to Impactable prior to the disclosure by Client as demonstrated by documentation or other reliable evidence, (c) Confidential Information disclosed by a third party to Impactable after the disclosure by Client, if such third party’s disclosure neither violates any obligation of the third party to Client nor is a consequence of Impactable’s breach, or (d) Confidential Information that Client authorizes, in writing, for release. This nondisclosure agreement set forth in this paragraph shall survive the Term.

• Ownership of Material. Impactable agrees that any work performed or Material (hereinafter defined) furnished pursuant to this Agreement will be considered a “Work Made-For-Hire” under the copyright laws of the United States, if applicable, or if not, Impactable hereby agrees to assign to Client all of its rights in and to the Material and/or ideas (including, but not limited, images, photographs, artwork, writings, documents (and abstracts or summaries thereof), trademarks, tradenames, slogans, tradedress, patents, copyrights, marketing and promotional concepts and strategies, marketing tools and derivative works of all of the foregoing) (collectively, the “Material”) created, developed, made, conceived, perfected or designed by Impactable (or Impactable’s employees or subcontractors) pursuant to this Agreement. Impactable agrees that Client will own all right, title and interest in and to the Material. Client retains the right to modify and supplement the Material in any manner Impactable hereby waives all ownership rights relating to the Material, including without limitation moral rights, and Impactable agrees to execute and deliver to Client (at no additional cost) upon Client’s request any additional instruments or documents necessary or desirable in Client’s sole judgment to vest, establish, protect, register or enforce the copyright to the Material in Client or its clients. Impactable’s agreement to assign its ownership and use rights in the Material set forth in this paragraph shall survive the Term.

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• Early Termination

  • Client may terminate this Agreement upon the occurrence of any one of the following

  • (i) Impactable becomes insolvent (or is the subject of a petition in bankruptcy) during the Term; or

  • (ii) Impactable fails or refuses to faithfully and diligently perform the services and adhere to the provisions of this Agreement; or

  • (iii) Impactable fails or refuses to comply with the policies, standards and regulations of Client which from time to time may be promulgated by Client to its vendors/Impactables;

  • (iv) Impactable’s conduct discredits Client or is detrimental to the reputation, character, or standing of Client or its clients

  • (vi) Impactable is unable to perform services due to death, illness or other disability

  If Impactable is in breach of Terms and early termination is granted:

  In the event of any such termination where Impactable has been found in breach of the above terms, Impactable will process a full refund of all unused time and round down to the benefit of the client for any partially used months. For example if 2.5 months were consumed and Impactable was found in breach of terms which allowed for early termination, Impactable would assume just 2 months of service consumed and refund all remaining time with no additional setup fee or coupons added to the equation.

• If Launch has not yet occured, Impactable will refund all payments including setup fee.

• If Impactable is not in breach of terms and yet early termination is granted:

For multi-month campaigns where Impactable is not found in breach of terms but early termination is granted, charges will then be calculated at a full-priced monthly basis for used time and full setup fee will be applied before processing unused time. In this calculation, Impactable will round up the calculation to count any partially consumed month as a whole month of useage.

• In those instances where no breach of terms from Impactable is proven but early termination is granted and a campaign has not yet launched, Impactable will keep 1 full priced month and full setup fee and shall return the remaining balance to client.

Indemnification. Impactable shall indemnify, defend and hold Client, its employees and agents harmless from and against any and all liabilities, damages, injuries, claims, suits, judgments, causes of action and expenses (including reasonable attorneys’ fees, court costs and out-of-pocket costs) suffered or incurred by Client (or its clients) as a result of any breach (or claimed breach) related to any representation, warranty or agreement made hereunder or any act or deed, whether by way of tort or contract, committed or omitted by Impactable, its employees, agents or subcontractors in the performance of this Agreement.