Vendor Services Agreement

National Today Vendor Services Agreement

Effective date:  January 1, 2021

To view the Terms of Service in effect prior to January 1, 2021, please click here.

This National Today Vendor Services Agreement constitutes a binding agreement (“Agreement”) between you or the entity you represent (“you” or “Client”) and TOP WORLDWIDE, LLC dba NATIONAL TODAY, a Texas corporation with its principal business address at 1601 East 7th Street, Austin, Texas 78702 (hereinafter “National Today”) governing the vendor services provided by National Today via its website, influencer network, social media accounts, mass media publicity engine, and other marketing channels (hereafter “National Today Platform”).

By signing a work order, quote, or statement of work that references inclusion of this Agreement, you are confirming that you have read, understand and agree to be bound by this Agreement.

You represent and warrant that you understand that the vendor services are being provided on a business-to-business (B2B) basis (i.e., for business use), as opposed to a business-to-consumer (B2C) basis (i.e., for personal use as an individual consumer).  If you are entering into this Agreement as a representative of an entity, you represent that you have the authority to legally bind that entity to this Agreement.

1.       Vendor Services

(a) National Today shall provide the services and materials set forth in the statement of work provided separately as Exhibit A-1 and such other services and materials as may be mutually agreed to by National Today and Client from time to time pursuant to written statements of work executed by the parties (the “Services” and “Materials”). Exhibit A-1 and each additional statement of work executed by the parties pursuant to this Agreement shall be individually referred to herein as a Statement of Work (“SOW”) and this Agreement shall be incorporated herein by reference.  Any capitalized terms not defined in a Statement of Work shall have their respective meanings as set forth in this Agreement.

(b) Each Statement of Work shall set forth: (i) the Services to be performed and Materials to be provided by National Today; (ii) any applicable deadlines and delivery dates for the Services and Materials; and (iii) the costs, fees, and payment schedule with respect to such Services and Materials.

(c) To the extent of any conflicting provisions in this Agreement and a Statement of Work, the provisions within this Agreement shall supersede and control, unless the Statement of Work references the Section(s) of the Agreement to be superseded by the Statement of Work, in which case the Statement of Work shall control with respect to the conflicting provision, though solely for the purposes of that particular SOW and no other.

(d) Client acknowledges that each Statement of Work is a single contract period for which National Today shall plan, strategize, and assume financial risks at the onset for the entire SOW contract period, including but not limited to investing in tangible and intangible assets for the benefit of the Client. Any billing periods specified in a Statement of Work are only for the convenience of the Client.

2.      Compensation and Reimbursement of Costs

(a) In consideration for National Today rendering the Services and providing the Materials associated with each Statement of Work, Client shall pay National Today all fees and expenses set forth in the applicable Statement of Work.

(b) In the event that additional third-party charges (i.e., messenger service fees, shipping, copying/binding, travel, etc.) become necessary in the performance of the Services, National Today shall receive approval from Client prior to incurring any such charges.  Payment by Client for third-party charges shall be due fifteen (15) days after receipt of an invoice from National Today.

(c) Client shall make payment to National Today based upon the terms specified in each Statement of Work. All wire transfer fees and/or currency conversion fees are to be paid by Client and not deducted from proceeds.  Due to its higher efficiency, payment shall be made via electronic funds transfer, wire service, or other comparable electronic method. In the event that National Today elects to accept a physical check on a case-by-case basis, checks shall be made payable to “National Today” and sent via overnight mail or deposited directly into National Today’s bank account.  Credit card processing is available for an additional 4 percent fee.

(d) Any balance that remains unpaid more than fifteen (15) days from the Client due date under this Agreement or any applicable Statement of Work shall incur a penalty equal to two (2) percent of the balance outstanding per calendar month (or portion thereof) from the date that payment should have been received. If any payment is past due, National Today reserves the right to suspend services until payment is received.

3.      Term and Termination

(a) The term of this Agreement shall commence as of the Effective Date and shall continue so long as National Today is performing work for Client under any applicable Statement of Work, unless terminated as set forth below.

(b) Client may terminate any Statement of Work hereunder upon ninety (90) days’ advance written notice to National Today (hereinafter “Advance Notice Period”). If Client terminates any Statement of Work pursuant to this Section 3(b), or if National Today terminates this Agreement because of Client’s material breach pursuant to Section 3(d), all payments due under this Agreement or any applicable Statement of Work (including all future payments specified in a Statement of Work) shall immediately become due in full.

(c) National Today may terminate this Agreement immediately upon written notice to Client, in which case National Today shall return any monies paid for work not yet completed or benefits not yet delivered as of the date of termination, but National Today shall have no further obligation or liability with respect to any work under this Agreement.

(d) Either party may terminate this Agreement immediately for cause in the event the other party breaches a material provision of this Agreement and does not cure such breach within thirty (30) days of the non-breaching party’s written notice thereof. Notwithstanding the foregoing, non-payment by Client shall be governed by Section 2(d).

4.      Additional Responsibilities

(a) Client recognizes that National Today has ongoing relationships with specific media outlets and journalists that are important to National Today’s business operations. For PR related services that may be contained in a Statement of Work, Client agrees to respond in a timely fashion to questions from National Today about interview availability and scheduling, guest article and blog post approval, and other topics related to National Today’s Services and Materials under this Agreement.  Client acknowledges that failure to respond to these questions in a timely fashion could affect National Today’s ability to render the Services specified in this Agreement. For the purpose of this Section 4, “timely fashion” means within two (2) business days from the time of submission to Client by National Today.

(b) Client agrees to respond in a timely fashion to National Today’s inquiries and requests for feedback. Client understands and acknowledges that failing to respond in a timely fashion may prevent National Today from performing its obligations under any applicable Statement of Work or this Agreement.

(c) Client and its officers, directors, members, managers, agents, and employees (as applicable) shall not disparage National Today, or National Today, officers, directors, agents, or employees in any public or private forum, or otherwise take any action which could reasonably be expected to adversely affect the reputation of National Today or the personal or professional reputation of any of National Today’s officers, directors, agents, or employees.

(d) Client agrees to not solicit or work directly with persons who are current employees or contractors of National Today, or who have been employed or contracted by National Today, within one year prior to the onset of the solicitation or direct working relationship.  Should Client hire, solicit, or engage a current employee or contractor of National Today, or an employee or contractor whose employment or engagement with National Today, ended within one year of the onset of Client hiring, soliciting or engaging said employee or contractor, Client agrees to immediately pay National Today, an amount equal to 50% of the market rate annual compensation for the position (as determined by, 50th percentile, at the date of hire) regardless of the duration of employment or engagement or whether the person is employed or engaged on a permanent or temporary basis.

(e) Nothing in the preceding paragraphs prohibits either party from testifying truthfully in any valid judicial process.

5.      National Today Website Policies

(a) National Today publishes the website, an online content and marketing platform that helps consumers celebrate fun, interesting, and noteworthy holidays and cultural events in the U.S. and throughout the world (hereinafter “Consumer Website”).

(b) In the event that Client is sponsoring a new or existing holiday on the Consumer Website, the parties agree that National Today retains the right to maintain the holiday page (hereinafter “Holiday Feature”) in a format suitable for the goals and style guidelines of Consumer Website as a whole. Although National Today may consult with Client on the content for the Holiday Feature or any other relevant content, Publisher retains sole discretion and approval over all content posted to the Consumer Website or any other National Today property or channel.

(c) After any content is publicly posted on the Consumer Website in conjunction with any applicable Statement of Work, content changes or updates can only be suggested by Client in accordance with all applicable content change fees.

(d) Publisher shall retain ownership of all aspects of the National Today Platform or Consumer Website, the copyright to the Holiday Feature, and the copyright to all other content and materials created under this Agreement or any applicable Statement of Work.

6.      Indemnification and Attorney Fees

(a) Client agrees to indemnify, defend, and hold National Today harmless from and against any and all claims, losses, damages, liabilities, costs, and expenses, including, without limitation, legal expenses and reasonable attorney fees, arising out of any claim based upon or relating to information or documents supplied by Client to National Today pursuant to this Agreement or any applicable Statement of Work.

(b) In any action brought to enforce any provision of this Agreement, the losing party will pay the prevailing party’s reasonable attorney fees and costs. An award of attorney fees shall include attorney time spent in the process of attempting collection prior to litigation.  The parties acknowledge that each has been represented by counsel in the negotiation and execution of this Agreement.  Accordingly, the preceding sentence, which provides for attorney fees and costs, applies only to the compensation provisions of the Agreement (set forth in Paragraph 2, “Compensation and Reimbursement of Costs,” and the “Payment Terms” section of each applicable Statement of Work) and to no other provision.

7.      Proprietary Rights

(a) National Today Intellectual Property. As between the parties, National Today retains title to and ownership of all rights (including copyright, trademark, patent, trade secret, and all other intellectual property rights) in and to the National Today Platform. The Client acquires no rights whatsoever to all or any part of the National Today Platform other than the limited use rights set forth above. Unless expressly set forth otherwise in this Agreement, Publisher shall retain all of its respective rights of publicity and likeness.   All rights not expressly granted to the Client are reserved by National Today.

(b) Client’s Intellectual Property. Any and all content (e.g., images, text and data) that Client provides to National Today in connection with the Services (“Client Content”) shall remain the Client’s property and the Client grants National Today a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable and royalty-free license for the duration of this Agreement or any applicable Statement of Work, to use, copy and store the Client Content in order to provide the Services.

8.      Confidentiality

(a) For the purpose of this Agreement, “Confidential Information” means nonpublic information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or to which the other party may have access, which (i) a reasonable person would consider confidential, or (ii) is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of this Agreement by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

(b) The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations under this Agreement, and shall take actions reasonably necessary and appropriate to prevent the unauthorized disclosure of the Confidential Information, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents, and other representatives who require access in order to perform its obligations under this Agreement or any applicable Statement of Work.

(c) Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information as required by applicable law or regulation or by a valid order of a court or government agency with appropriate jurisdiction over the parties and the subject matter of the information, but only to the extent of and for the purposes of such law, regulation or order and only after the other party is afforded a reasonable opportunity to oppose such disclosure or seek protection against further disclosure of the information.

9.      Additional Terms

(a) This Agreement, together with each Statement of Work entered into pursuant to this Agreement, sets forth the entire understanding between the parties hereto, and supersedes and replaces all prior or contemporaneous oral or written agreements between the parties concerning the matters contemplated in this Agreement. This Agreement may not be amended, modified or extended in any way by either party without the written agreement of other party.  Time is of the essence with respect to dates and timelines set forth in this Agreement.

(b) No waiver, by either party, whether express or implied, of any provision under of this Agreement or of any breach or default of the other party (or any related remedy), shall constitute a waiver of any other provision of this Agreement or prevent such party from enforcing any provision of this Agreement or from seeking a remedy as to any subsequent breach or default. No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof.

(c) The relationship of the parties for this Agreement is that of independent contractors.  Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative, or employer or employee, of the other party, or both parties as joint venturers or partners for any purpose.

(d) In no event shall National Today or its officers, directors, employees, affiliates or agents be liable for any indirect, incidental, special, punitive, exemplary or consequential damages, including but not limited to lost profits, loss of goodwill, or speculative damages. The aggregate liability of National Today for all work performed under this Agreement shall in no event exceed the contract value of any applicable Statement of Work.

(e) This Agreement and/or any Statement of Work is the result of negotiations between the parties and has been reviewed by each of the parties hereto and their respective counsel, if any. Accordingly, this Agreement and/or any Statement of Work shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

(f) National Today may assign this Agreement and/or any Statement of Work, without prior written consent, to any corporation or other entity “assignee” with or into which National Today may hereafter merge or consolidate or to which National Today may transfer all or substantially all of its assets, including but not limited to an entity with substantially the same ownership structure as National Today. The assignee shall assume all obligations of National Today hereunder as fully as if it had been originally made a party to the Agreement.

(g) This Agreement (and any dispute arising from the relationship between the parties to this Agreement) shall be governed by Texas law. Any dispute that arises under or relates to this Agreement shall be resolved in the state and federal courts within Travis county, Texas.

(h) Those provisions which have continuing applicability past the termination date of this Agreement, such as indemnification, non-disparagement, and attorney fees, shall survive the termination of this Agreement.