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By signing this Agreement, (“Client”) has retained OTM LLC, dba, On-Target! Marketing & Advertising (“Service Provider”) to proceed with the requested services, and agrees to the terms and conditions as set forth in this Agreement:
The Client hereby engages Service Provider to provide growth agency services and Service Provider accepts such appointment and agrees to perform the services specified hereunder on behalf of Client. The Service Provider acknowledges the responsibility as part of the normal course of business to hold in confidence all information regarding Client’s business or businesses that Client considers to be proprietary and such information shall remain confidential post termination of the agreement.
Services
Service Provider shall provide services customarily performed by sales consulting, marketing, public relations and advertising agencies, creative and digital communication firms. However, no services shall be performed unless and until Service Provider receives your prior authorization. A non-inclusive list of some of the services that will be provided on request include:
Strategic Consultation
Service Provider will analyze a variety of business factors for the Client such as, business practices, marketplace dynamics, strengths, weaknesses, market opportunities and threats, financial performance and goals. Based on these findings, Service Provider will develop strategic and tactical plans appropriate for the Client’s objectives and resources.
Creative Development
Service Provider will assess Client’s current practices, personnel, and communication resources, then conceive and produce creative executions appropriate for the approved plans.
Technology
Service provider will assess Client’s current technology stack and make any appropriate recommendations for change, addition, deletion. All technology commitments will remain in the power of Client as will all financial arrangements.
Training
Service provider may provide training to Client’s personnel related to a variety of topics such as technology/software usage, sales and marketing best practices, market trends, or creative skills.
Media
Service Provider may develop media plans and negotiate with the appropriate media entities to acquire space, time, placements, etc., as needed to execute a Client approved plan.
Execution
Service Provider will perform all necessary and related services to effectively execute the plans within the constraints of the approved budget.
For details on these activities refer to the Scope of Work (SOW) Document.
Hourly Rates
Services |
OTM&A Hourly Rates |
Retainer Discounted Rates |
Strategic Consultation |
$350.00 |
$175.00 |
Sales Training |
$300.00 |
$175.00 |
Public Relations |
$250.00 |
$175.00 |
Web Application Programming |
$250.00 |
$175.00 |
Creative Development/Branding |
$200.00 |
$175.00 |
Client Responsibilities
Client understands that Service Provider is not an employee, and that this will be a collaborative, professional relationship of equals where mutual professional respect, courtesy and consideration are expected. Due to the virtual nature of the relationship, Client understands the importance of communication, especially via email, and agrees to respond to questions, requests and communications from Service Provider in a timely manner. Client understands that Service Provider is a business with other clients to serve, and requires fair, realistic notice in order to attend to requests and projects. Poor planning or miscommunications on the part of the Client will not constitute an emergency for Service Provider. Client understands that Service Provider may require detailed clarification of projects in order to meet expectations and provide the best support and highest quality work.
If cancellation of a project or hourly based engagement occurs prior to the completion of finished art, all work to date of cancellation shall be paid by Client. In the event that the project is billed on an hourly basis, all work performed up to cancellation will be paid in full and all necessary and related reasonable expenses shall be paid in full. If cancellation occurs after completion of the finished art, the cancellation fee shall be the original fee and any overage fees.
If rejection of any finished art occurs prior to the completion of the finished art, Client shall pay costs of finished art to the date of the rejection. In the event that the project is billed on an hourly basis, all work performed up to the date of rejection will be paid in full and all necessary and related reasonable expenses shall be paid in full. If rejection occurs after completion of the finished art, the rejection fee shall be the original fee. The client without a separate fee MAY NOT USE rejected or cancelled work for reproduction unless such work was rejected or cancelled due to termination of this contract. Once payment in full is received by Service Provider, then Client will own such work.
21. Expiration & Modification
This Agreement shall remain in effect until such time as one or the other Party provides written notice of cancellation. This Agreement may be modified or amended as necessary after negotiations initiated by either Party. If agreement is reached, only a written instrument signed by both Parties will modify or amend this Agreement.
22. Arbitration of Disputes
Client and Service Provider agree that any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either party shall serve the other party and the Houston office of the AAA the notice of intent to arbitrate. There shall be three arbitrators; one selected by each party within 20 days of the notice of intent and a third selected by the 2 arbitrators within 10 days of the selection of the last of the 2 arbitrators. The arbitration proceedings shall be located in Houston, Texas.
Force Majeure. Except as otherwise expressly provided in this Agreement, neither party will be liable for any breach of this Agreement, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including, but not limited to, the weather, strikes or labor disputes, war, terrorist acts (including, without limitation, acts by third party computer hackers), riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God provided the party affected takes all reasonable necessary steps to resume full performance.
The terms and conditions of this Agreement may be modified or amended as necessary only by written instrument signed by both parties. By signing this Agreement, I indicate that I understand, agree to and accept the terms and conditions as contained herein.
23. Service Provider Employees
Employees are the most valuable asset of our companies. This section defines what happens if either party wishes to hire an employee from the other party. The loss of any employees will cause great harm, the amount of which will be difficult, or impossible to determine. Therefore, from the date that you accept this Agreement until twelve months after termination hereof, both parties agree that we will not offer employment to any current or former employees or contract with, either individually or through a third party, any current or former employees. In the event of a breach of this provision, both parties agree to pay liquidated damages an amount equal to that employee’s compensation for the most recent twelve (12) months of his or her employment.
24. Estimates
Should Client initiate any additional projects requiring estimates, estimates may include professional services time only and may not include any outside costs such as photography, printing, special coding requirements, e.g., video or audio production, talent fees, or custom programming, XML, ASP, PHP, etc., unless specifically noted. Estimated costs do not include any applicable sales taxes unless indicated specifically.
25. Confidentiality and Non-Disclosure
In providing these Services it is necessary for Service Provider to access confidential information. This section details our commitment to keeping your information confidential: neither party will disclose to third parties the other’s Confidential Information without the prior written consent of the other party, nor will either party use the other party’s Confidential Information, except to the extent necessary to exercise such party’s rights and fulfill such party’s obligations under this Agreement. For purposes of this Agreement, “Confidential Information” means any and all proprietary information or material (in oral, written, graphic or any other form) concerning either party (the “Discloser”) provided by or on behalf of the Discloser to the other party (the “Recipient”) hereunder, including without limitation: (a) ideas and concepts for existing and new products, processes and services; (b) specifications for products, equipment and processes, whether technical or financial; (c) manufacturing and performance specifications and procedures; (d) engineering drawings and graphs and software (including source and object code), hardware configuration, computer programs and algorithms; (e) technical, research and engineering data; (f) materials and material specifications; (g) laboratory studies and benchmark tests; (h) manuals, including service manuals and operation manuals; (i) quality assurance and acceptance policies, procedures and specifications; (j) evaluation and/or validation studies; (k) pending patent applications; (l) all other know-how, methodology, procedures, techniques and trade secrets related to research, engineering, development and manufacturing; and (m) business information, marketing and development plans, forecasts, research, development agreements and customer, and vendor information. The Recipient agrees to prevent the unauthorized disclosure or use of the Discloser’s Confidential Information by using the same degree of care (but no less than a reasonable degree of care) as the Recipient uses to protect its own Confidential Information. Further, the Recipient agrees to limit access to the Confidential Information of the Discloser to the Recipient’s financial advisors, legal counsel and consultants who (a) have a need to know such information and (b) have signed an acknowledgement that they agree to be bound by this Agreement or delivered to the Discloser a separate confidentiality agreement satisfactory to the Discloser. Each party agrees to notify the other party in writing of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information which may come to the notifying party’s attention. Notwithstanding the foregoing, Confidential Information shall not include any information which can be shown to be: (a) known to the Recipient without restriction at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (b) a matter of public knowledge through no fault of the Recipient; (c) rightfully received by the Recipient from a third party without a duty of confidentiality on the third party; (d) independently developed by the Recipient without reference to any of the Discloser’s Confidential Information, which can be demonstrated by written records; (e) disclosed pursuant to court order or otherwise under operation of law, rule or regulation, provided that Recipient provides prompt notice of such requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure; or (f) disclosed by Recipient with prior written approval from Discloser.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, conversations, negotiations, understandings, term sheets, letters of intent, and confidentiality agreements relating to the subject matter contained herein.