These Service Terms & Conditions (these “Terms”) govern the services to be provided by Counterweight Media Inc. (“Counterweight Media”) to any client (“Client”) pursuant to the terms of any work order, statement of work or other document (each, an “SOW”) containing details for a project (each, a “Project”) that is signed by Counterweight Media and Client. Capitalized terms not defined in context have the meanings given in Section 13 of these Terms. Where referenced in these Terms, “agreement” means, with respect to each Project, the applicable SOW and these Terms together.

1. Counterweight Obligations. Counterweight Media will provide the services and Deliverables in accordance with this agreement, and will: (a) perform its work in a professional manner, in accordance with industry standards, and in compliance with applicable law; (b) assign staff who are qualified to perform the services; (c) not infringe any third-party copyrights (provided Client uses Deliverables only as intended); and (d) produce Deliverables that substantially conform to the Specifications.
2. Client Obligations. Counterweight Media’s obligation to provide the Deliverables on the schedule and for the fees described in the SOW is conditioned on Client (along with any other client obligations specified in the SOW each, a “Client Obligation”): (a) in a reasonably timely manner, providing any requested Client Materials, feedback, approvals and access to systems; (b) providing Client Materials that Client owns or has the right to use as intended; and (c) reasonably cooperate with Counterweight in connection with its performance of the services, including treating Counterweight staff in a professional manner.
3. Fees; Invoicing. Client will pay the fees and costs as described in the SOW. Except as provided in the SOW, Counterweight Media will not incur costs to be reimbursed by Client without Client’s written approval. Work requested by Client that is outside the scope of the SOW will be billed at Counterweight Media’s then-current billable rate. Counterweight Media will invoice on the schedule described in the SOW, and invoices are due as provided in the SOW. If not specified in the SOW, invoices are due within 15 days of receipt. Amounts not paid when due accrue interest at 1.5% per month (or, if lower, the highest rate permitted by applicable law). Counterweight Media reserves the right to suspend services (which may result in Client’s website being nonfunctional or unavailable) if payments are not received when due.
4. Intellectual Property.
   • Deliverables. Once Client pays for a Deliverable, Counterweight Media hereby grants Client a nonexclusive, royalty-free, perpetual, worldwide license to use, modify, display, and otherwise take full lawful advantage of the Deliverables.
   • Licensed Materials. Client acknowledges that (i) the Deliverables may include Licensed Materials, and (ii) those materials are subject to license terms or other restrictions. Counterweight Media will advise Client of any terms governing Licensed Materials and Client agrees to comply with those terms.
   • Client Materials. Client hereby grants Counterweight Media a license to use the Client Materials solely for the purposes of completing the Project.
5. Termination. Either party may terminate the SOW: (i) if the other party breaches this agreement and does not cure the breach within ten days of its receipt of written notice of the breach; or (ii) for any other reason on ten days written notice. If a party terminates the SOW for reasons other than breach, it will pay the non-breaching party the Early Termination Fee.
6. Confidential Information. When a party provides Confidential Information (the “Discloser”) to the other party (the “Recipient”), the Recipient agrees to: (a) not disclose the Confidential Information except as necessary to perform under this agreement; (b) use commercially reasonable efforts to maintain the confidentiality of the Confidential Information; and (c) not use the Confidential Information except in connection with this agreement.
7. Promotional Rights. Counterweight Media may use Client’s name, logo, images of Counterweight Media’s work, and a description of the Project in Counterweight Media’s portfolio, social channels, website, and in submissions to publications for awards and recognition.
8. Warranties & Disclaimer.
   • Warranties. Counterweight Media warrants that: (i) it has the power and authority to enter into and perform this agreement and its performance hereunder will not breach any agreement to which it is bound; (ii) it will perform its services in accordance with industry standards and applicable law, and in a professional manner; and (iii) in performing its services, it will not willfully infringe upon any third-party’s rights.
   • Disclaimer. Except as provided in this agreement, Counterweight Media’s performance, services and Deliverables are provided “AS IS” and without other warranty.
9. Indemnity. Each party will, subject to Section 10 below, indemnify the other party against any third-party claim that is brought against the indemnified party and arose from the indemnifying party’s gross negligence, intentional wrongdoing or breach of this agreement (a “Claim”); provided, that: (a) the party seeking indemnification promptly notifies the other party in writing of the Claim; (b) the indemnifying party shall be permitted (at its option) to control the defense and resolution of the Claim; and (c) the indemnified party shall reasonably cooperate with the indemnifying party in connection with the Claim.
10. Limitation on Liability. Subject to applicable law, each party’s maximum liability in any action regarding the subject of this agreement is limited to the total amount payable under the SOW that is the subject of (or mostly closely-related to) the dispute (plus legal fees under Section 14(c)).
11. Non-Solicitation.
    • Restriction. While services are being performed and for a period of one year after the last date services were provided, the parties shall not recruit or hire the employees of the other party. This restriction does not prevent (i) one party from hiring an employee of the other party that was terminated by that other party, or (ii) an employee of one party from responding to a job posting of general circulation from the other party.
    • Consequences. Damages resulting from a breach of this section would be difficult to quantify. As a reasonable estimate of those damages, if one party solicits or recruits an employee of the other party in violation of this agreement, the hiring party shall pay the other party a fee equal to 26 weeks of the former employee’s full-time wages as liquidated damages.
12. Governing Law; Jurisdiction. Washington law governs this agreement. The state and federal courts for Pierce County, Washington are the exclusive venues for resolving any disputes under this agreement.
13. Definitions. The following terms have the meanings given:

“Client Materials” means all information, designs, data, specifications, graphics, logos, written content, and other materials provided by Client for use by Counterweight Media in the Project.

“Confidential Information” means information that is either identified as confidential upon disclosure or that the Recipient should understand to be confidential under the circumstances. Confidential Information does not include information that is: (a) available to the general public not by breach of this agreement; (b) known to Recipient at time of disclosure; (c) obtained by Receiver from a third-party other than through a breach of confidence; or (d) independently developed by Receiver.

“Deliverables” means the final versions of the materials produced by Counterweight Media pursuant to the SOW.

“Early Termination Fee” means (unless a different amount is specified in the SOW) 50% of the fees that would have been billed for the cancelled portion of the SOW.

“Licensed Materials” means materials or services incorporated into the Deliverables that are subject to license terms or restrictions imposed by third parties.

“Specifications” are functional or technical specifications for work described in the SOW or that have been otherwise agreed to in writing by Client and Counterweight Media.

14. Miscellaneous.
    • Taxes. The fees and costs in any SOW do not include any sales, use, and value added taxes. If assessed, Client agrees to pay those amounts in addition to applicable fees and costs (even if assessed after work is completed). Counterweight Media is responsible for all taxes on Counterweight Media’s income and employment taxes for Counterweight Media’s staff.
    • Independent Contractor. Counterweight Media is an independent contractor to Client. Counterweight Media is solely responsible for the means and manner of performing Counterweight Media’s services.
    • Legal Fees. In any dispute regarding the subject of this agreement, the prevailing party is entitled to recover its reasonable legal fees and expenses from the non-prevailing party.
    • This Agreement. If the SOW conflicts with these Terms, then the terms of the SOW control as to the work described in that SOW. This agreement is the entire agreement of the parties with respect to a Project. For each Project, these Terms may only be amended in a writing that is signed by authorized representative of each party. Changes to the SOW may be made by agreement of both parties via email or by agreement in project management software. If any term of this agreement is determined to be unenforceable, the remainder of this agreement will not be affected. This agreement was negotiated by sophisticated parties and will not be construed in favor of or against either party.

Published: 12-1-2024