HomeMy WebLinkAboutC2023-040 - Data Driven MarketersMASTER SERVICES AGREEMENT FOR INFRASTRUCTURE-DEVELOPMENT
This Master Services Agreement (“Agreement”) is made by and between Data Driven
Marketers LLC, an Arizona limited liability company (“Contractor”), and The Town of
Fountain Hills, an
___________________________________________(“Client”).Each
of Contractor and Client may be referred to as “Party” or collectively as “Parties.”
Client hereby contracts with and agrees to pay Contractor for Services to be defined in
one or more Statement(s) of Work, which Services shall be performed and delivered in
accordance with the following terms and conditions. In consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged and agreed, the Parties hereby agree as follows:
1. Relationship of the Parties.The Parties agree that Contractor will be serving Client
as an independent contractor for all purposes and not as an employee, agent, partner, or joint
venturer with Client. Contractor will have control over the order and sequence of the services,
deliverables, and the specific hours worked and will not be subject to withholding by Client of
income or employment taxes. The services to be performed by Contractor (the "Services") are set
forth in detail in one or more documents entitled "Statement of Work" (the "SOW"), incorporated
herein.
2. Effective Date and Termination.
(a)As stated herein or in the SOW, the initial term of this Agreement shall be thirty
(30) days (the “Initial Term”). Either Party may terminate this Agreement by providing the other
Party a minimum of thirty (30) days advance written notice and such termination will be
effective as of the date specified in such notice (the "Termination Date"), provided that such date
is no earlier than thirty (30) days after the date of delivery of the notice. Contractor will continue
to provide, and Client will continue to pay for, the Services until the Termination Date.
(b)Contractor may terminate this Agreement immediately upon written notice to
Client if: (i) Client is engaged in or asks Contractor to engage in or ignore any illegal or
unethical activity; or (ii) Client fails to pay any amounts due to Contractor when due.
(c)In the event that a Party commits a breach of this Agreement, other than for the
reasons described in the above Section 2(b), and fails to cure the same within five (5) business
days following delivery by the non-breaching Party of written notice specifying the nature of the
breach, the non-breaching Party may terminate this Agreement effective upon written notice of
such termination.
(d)The expiration or termination of this Agreement will not destroy or diminish the
binding force and effect of any of the provisions of this Agreement that expressly, or by
reasonable implication, come into or continue in effect on or after such expiration or termination,
including, without limitation, provisions relating to payment of fees and expenses (including
witness fees and expenses), confidentiality, governing law, arbitration, and limitation of liability.
(e)Change Orders. Any requests for changes from the SOW, or any other details
which Client desires to have made, shall be submitted to Contractor for pricing. A preliminary
schedule of pricing for requested changes shall be submitted to Client. Client shall have 10
business days after receipt of a change order form within which to sign and return the change
order to Contractor. No request for a change shall be binding on Contractor unless in writing on
Contractor's change order form signed by Contractor and Client. After receipt and acceptance, by
Contractor of the change order form, the change order form shall be deemed to be a “Change
Order”, which shall then be an amendment to this Agreement and incorporated herein. Client
acknowledges that some Change Orders and some requests for changes may cause a delay in the
delivery of services, and that Contractor is not responsible for any expenses, time delays, or
damages incurred by Client as a result of such delay.
3. Savings Clause.
(a)Contractor's failure to perform its contractual responsibilities, to perform the
Services, or to meet agreed service levels shall be excused if and to the extent Contractor's
nonperformance is caused by Client's omission to act, delay, wrongful action, failure to provide
inputs, or failure to perform its obligations under this Agreement. Client shall be solely
responsible for providing Contractor all marketing, branding, and financial information related to
personal and/or business affairs including, but not limited to, all materials, data, documents, and
necessary items listed in the SOW to perform the Services under this Agreement. Client
acknowledges and agrees that the accuracy of information supplied to Contractor is the sole
responsibility of Client and Contractor shall be held harmless from any liability resulting from
the accuracy of the information provided.
(b)Client shall designate one individual, listed here:
________________________to serve as its primary contact and final
decision-maker with respect to this Agreement and to act as its authorized representative with
respect to matters pertaining to this Agreement (the "Client Decision-Maker"). Additional
contacts may collaborate although are accountable to the Client Decision-Maker. The Client
Decision-Maker shall respond promptly to any reasonable requests from Contractor for
instructions, information, or approvals required by Contractor to provide the Services. Below is a
list of the various individuals and entities that will also be providing approvals and information
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on behalf of the Client (the “Subject-Matter Specific Decision-Makers”) and the specific services
that will be provided by each:
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
4.___________________________________________________________
5.___________________________________________________________
6.___________________________________________________________
7.___________________________________________________________
8.___________________________________________________________
(c) Client shall indemnify, defend, and hold harmless Contractor and its affiliates,
employees, contractors, vendors, and the respective current, future, and former officers,
directors, employees, agents, successors and assigns of each of the foregoing, and each of the
foregoing persons or entities on demand, from and against any and all claims or losses incurred
by any of them and shall defend the Contractor against all claims arising from or in connection
with this Agreement, the actions of any Subject-Matter Specific Decision-Makers, or in relation
to any Subject-Matter Specific Decision-Maker services or Third-Party Services.
(d)No Exclusivity. Contractor retains the right to perform the same or similar type of
Services for third parties during the Term of this Agreement. Contractor shall be the exclusive
marketing provider for Client for any and all services listed in our SOW(s).
4. Payment Terms.Payments to Contractor are to be made within five (5) business
days (or what’s stated in the SOW) of Client's receipt of invoice by credit card, check, or ACH
payment in accordance with the instructions set forth on invoice or such alternative financial
institutions as may be provided in writing by Contractor from time to time (the “Fees”). Client
agrees to pay all expenses associated with the Services, including any third-party fees.
Contractor will submit an invoice for Fees and reimbursable expenses within ten (10) calendar
days of the completion of Services or as stated in any applicable Statement of Work. Any
amounts not paid when due are subject to a late charge equal to the lesser of 1.5% per month of
the unpaid amount or the maximum amount allowed under applicable law, until such amounts
are paid in full, including assessed service charges. At Contractor ’s sole and exclusive discretion,
Contractor may suspend Services if amounts owed are not paid in accordance with the terms of
this Agreement. All fees are considered non-refundable and shall not be returned or refunded to
Client without the express written consent of Contractor, which may be withheld in Contractor’s
sole and exclusive discretion.
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5. Taxes.The fees chargeable by Contractor do not include any taxes, duties, and levies
imposed by any government body. Client shall be liable and will pay for all applicable tax
liabilities such as sales, services, use, or value added taxes, but specifically excluding
employment related taxes concerning Contractor personnel and income taxes based on
Contractor's net income. If Client claims exemption from any taxes resulting from this
Agreement, then Client will promptly provide Contractor with the relevant documentation to
verify such exemption including required certificates, if any, from the relevant taxing authorities.
6. Warranties, Disclaimers, and No Guarantees.Except as otherwise expressly set
forth herein or in an applicable SOW, it is understood that Contractor does not have a contractual
obligation to Client other than to provide the Services using commercially reasonable efforts in
accordance with industry standards. Client acknowledges that any information, including any
resources delivered through Contractor ’s proprietary information and technology system, will be
provided by Contractor as a tool to be used in the discretion of Client. Contractor will not be
responsible for any action taken by Client in following or declining to follow any of Contractor's
advice or recommendations. Contractor disclaims all other warranties, whether express, implied,
or statutory. Without limiting the foregoing, Contractor makes no representation or warranty as
to the accuracy or reliability of projections, certifications, opinions, representations, or any other
information prepared or made by Contractor (collectively, the "Information") even if derived
from Contractor's intellectual capital. Contractor will not be liable for any claims of reliance on
the Information or that the Information does not comply with federal, state, or local laws or
regulations. The Services are for the sole benefit of Client and not any unnamed third parties,
unless otherwise stated herein.
7. Limitation of Liability.The liability of Contractor in any and all categories and for
any and all causes arising out of this Agreement, whether based in contract, tort, negligence,
strict liability, or otherwise will, in the aggregate, not exceed the actual fees paid by Client to
Contractor over the period of this Agreement. In no event will Contractor be liable for incidental,
consequential, punitive, indirect, or special damages, including, without limitation, any
interruption or loss of business, profit, or goodwill. As a condition for recovery of any liability,
Client must assert any claim against Contractor within three (3) months after discovery or sixty
(60) days after the termination or expiration of this Agreement, whichever is earlier.
8. Governing Law, Arbitration, Witness Fees, and Injunctive Relief.
(a) This Agreement will be governed by and construed in accordance with the laws of
the State of Arizona, without regard to conflicts of law's provisions.
(b) The Parties agree that resolution of disputes or claims arising under this Agreement
shall be resolved first by good-faith participation by each of the Parties in mediation utilizing
qualified mediators who are mutually agreed upon by the Parties. If the dispute is not resolved
through mediation within thirty (30) days from the date that either party makes a written demand
on the other party to enter into mediation, and in the absence of a mutual agreement to enter into
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binding arbitration with an arbitrator mutually agreed upon by the Parties, either party shall have
the right to bring a judicial action to resolve the dispute through the filing of an action with the
court in Maricopa County, Arizona. Unless otherwise determined by the court and/or by the
arbitrator, each of which shall have the power to allocate the costs of the action or the arbitration,
each party shall pay its own attorneys and court costs.
(c) In the event Contractor is requested or authorized by Client or is required by
government regulation, subpoena, or other legal process to produce documents or appear as
witnesses in connection with any action, suit, or other proceeding initiated by a third-party
against Client or by Client against a third-party, Client will, so long as Contractor is not a party
to the proceeding in which the information is sought, reimburse Contractor for its professional's
time (based on customary rates) and expenses, as well as the fees and expenses of its counsel,
incurred in responding to such requests. This provision is in addition to and not in lieu of any
indemnification obligations Client may have under this Agreement.
(d) Each of the Parties acknowledge that a breach or threat of a breach of any provision
of this Agreement by either Party will result in irreparable harm and damage to the
non-breaching Party. Consequently, the non-breaching Party's remedies at law will be inadequate
and, in each such event, the non-breaching Party will be entitled to an injunction or other similar
relief to prevent the breaching Party or its executives from breaching this Agreement and to
enforce specifically the provisions hereof, in addition to money damages sustained by the
non-breaching party resulting from a breach or threatened breach of this the State of Arizona,
without regard to conflicts of law's provisions.
9. Confidential Information.
(a) Each Party (the "Receiving Party") will treat as confidential and prevent
unauthorized duplication or disclosure of any confidential or proprietary information, including,
without limitation, any information about the Disclosing Party's (as defined below) products,
services, marketing techniques, marketing frameworks, operational processes, price lists,
customer lists, pricing policies, business methods, business plans, budgets, projections, financial
information, and technical information (the "Confidential Information") of the other Party (the
"Disclosing Party") which the Receiving Party may acquire during the course of its activities
under this Agreement and will not use any of the Confidential Information for any purpose other
than in furtherance of the Receiving Party's obligations under this Agreement. Notwithstanding
the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party
to its employees, members, officers, agents, or consultants (the "Representatives") who need to
have access to the Confidential Information, and who are informed by the Receiving Party of the
confidentiality obligations imposed by this Agreement. The Receiving Party's obligations under
this Section will not apply to Confidential Information that (i) is or becomes part of the public
domain through no fault of Receiving Party or its Representatives; (ii) is known to the Receiving
Party at the time of receipt of such information from the Disclosing Party; (iii) if, after the date
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hereof, obtained by Receiving Party from a third party who has the legal right to disclose the
same without a restriction on disclosure; (iv) has been, or is subsequently, independently
acquired or developed by the Receiving Party without violating any of the Receiving Party's
obligations under this Agreement; or (v) is required to be disclosed by government regulation,
court order or other legal process; provided the Receiving Party provides the Disclosing Party
with prompt notice of such requirement so that the Disclosing Party may seek a protective order
or other appropriate relief. The Receiving Party acknowledges and understands that any right,
title, and interest in and to the Disclosing Party's Confidential Information are vested in the
Disclosing Party. The obligations of confidentiality provided hereunder will survive for a period
of two (2) years after the expiration or termination of this Agreement for any reason.
(b) Each of the Parties acknowledge that the covenants and restrictions contained in this
Agreement are (a) necessary, fundamental, and required for the protection of the business and
intellectual property of each of the Parties; (b) necessary and required to protect the goodwill and
value of Contractor; (c) relate to matters which are of a special, unique, and extraordinary
character that give each of the covenants and restrictions a special, unique, and extraordinary
value; and (d) of a nature such that a breach of any such covenants or restrictions or any other
provision of this Agreement will result in irreparable harm and damage to Contractor.
10. Intellectual Property Ownership.
(a) To the extent Client has paid Contractor all amounts owed, all written reports,
summaries, analyses, memoranda, spreadsheets, or other tangible work product prepared by
Contractor in connection with the provision of Services hereunder (but specifically excluding
any of Contractor's pre-existing materials and the Residuals (as defined below and in our
SOW(s))) (collectively “Work Product") will be considered work made for hire by Contractor
and owned by Client. Contractor agrees to perform, during or after its engagement, such further
acts as may be necessary or desirable to transfer and perfect Client's ownership of all Work
Product, if any. In addition, Contractor hereby grants to Client a non-exclusive, royalty-free right
and license to use the Residuals in connection with Client's use of the Work Product, but only for
internal business purposes and not for sale, resale, or use by third-parties. Contractor may revoke
this license if Client breaches any terms of this Agreement. The ideas, methods, concepts,
know-how, techniques, inventions, developments, processes, discoveries, improvements, and
other information relating to the Services developed during the course of this Agreement by
Contractor (collectively, "Residuals") will be owned by Contractor and may be used by
Contractor, without any obligation to account, in any way that it deems appropriate, including by
or for its other clients. Accordingly, subject to any confidentiality obligations of Contractor
hereunder, nothing in this Agreement will preclude or limit Contractor from providing services
and/or deliverables for other clients, irrespective of the possible similarity thereof to materials
which might be delivered to Client.
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(b) Subject to and in accordance with the terms and conditions of this Agreement, Client
grants Contractor and its affiliates and permitted third party service providers a limited,
non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during
the Term to use Client's intellectual property solely to the extent necessary to provide the
Services to Client.
(c) Client grants no other right or license to any Client intellectual property to
Contractor by implication, estoppel, or otherwise. Contractor acknowledges that Client owns all
right, title, and interest in, to and under the Client's intellectual property. Any use by Contractor
or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party
advisor, successor or permitted assign (collectively "Representatives") of Contractor of any of
Client's intellectual property.
(d)Client will not, directly or indirectly: reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code, object code or underlying structure, ideas,
know-how or algorithms relevant to the Services or any software, documentation, or data related
to the Services (“Software”); modify, translate, or create derivative works based on the Services
or any Software (except to the extent expressly permitted by Contractor or authorized within the
Services); use the Services or any Software for timesharing or service bureau purposes or
otherwise for the benefit of a third party; or remove any proprietary notices or labels. With
respect to any Software that is distributed or provided to Client for use on Client premises or
devices, Contractor hereby grants Client a non-exclusive, non-transferable, non-sublicensable
license to use such Software during the Term only in connection with the Services.
(e)Contractor shall own and retain all right, title, and interest in and to (a) the
Services and Software, all improvements, enhancements, or modifications thereto, (b) any
software, applications, inventions or other technology developed in connection with and
implementation of Services or support, and (c) all intellectual property rights related to any of the
foregoing.
(f)Client represents, covenants, and warrants that Client will use the Services only in
compliance with Contractor ’s standard policies then in effect (the “Policy”), the terms of this
Agreement, and all applicable laws and regulations. Client hereby agrees to indemnify, defend,
and hold harmless Company against any damages, losses, liabilities, settlements, and expenses
(including without limitation costs and attorneys’ fees) in connection with any claim or action
that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services.
Although Contractor has no obligation to monitor Client’s use of the Services, Contractor may
do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation
of the foregoing.
(g)Client shall be responsible for obtaining and maintaining any equipment and
ancillary services needed to connect to, access or otherwise use the Services, including, without
limitation, modems, hardware, servers, software, operating systems, networking, web servers and
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the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security
of the Equipment, Client account, passwords (including but not limited to administrative and
user passwords) and files, and for all uses of Client account or the Equipment with or without
Client’s knowledge or consent.
11. General Provisions.
(a) Waiver. Neither Party will be deemed to have waived any rights or remedies
accruing under this Agreement unless such waiver is in writing and signed by the Party electing
to waive the right or remedy. The waiver by any Party of a breach or violation of any provision
of this Agreement will not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision of this Agreement. No delay on the part of any party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party hereto of any right, power or privilege hereunder operate as a
waiver of any other right, power, or privilege hereunder, nor shall any single or partial exercise
of any right, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege hereunder.
(b)Force Majeure. Neither Party will be liable for any delay or failure to perform
under this Agreement (other than with respect to payment obligations) to the extent such delay or
failure is a result of an act of God, war, earthquake, pandemic, civil disobedience, court order,
labor dispute, or other cause beyond such Party's reasonable control.
(c)Further Documents and Acts . From time to time each party shall take, or cause to be
taken, all reasonable actions and shall execute and deliver such documents as may be reasonably
requested by the other party to carry out the purposes and intent of this Agreement.
(d)Default by Client. If Client is more than fourteen (14) days late in making the
required payments to Contractor pursuant to the terms of this Agreement, and upon receipt of
written notice that the payment is late, Client shall have six (6) calendar days to cause a cashier's
check to be sent to Contractor, by overnight mail to be received by Contractor on or before the
sixth (6) day after Client's receipt of said written notice of non-payment. In the event Client fails
to send the cashier check within said period, it shall be in default under this Agreement and,
thereupon: (1) Contractor will have no responsibility to perform further services on behalf of
Client; and (2) the entire amount of the unpaid balance of the payments required under the SOW
shall become immediately due and payable to Contractor.
(e)Default by Contractor. Contractor shall be in default under this Agreement if
Contractor fails to perform the Services reasonably required to be performed, taking into account
that other service providers may be required to perform major services on a timely basis to
enable Contractor to perform the Services. Nevertheless, it is understood that the work schedule
for Contractor may, by mutual arrangement with Client, be altered to fit Contractor's
convenience as well as the needs of Client for the Services. Client must give Contractor not less
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than fifteen (15) calendar days' written notice of any alleged default in the performance of its
Services required under the terms of this Agreement. Contractor will have ten (10) days after
receipt of said notice to meet with Client for the purpose of seeking a mutually agreed upon
resolution of the alleged default. If the matter is not mutually resolved by this process, Client and
Contractor shall have the right to terminate this Agreement. However, Client shall not be
excused from paying for any Services actually provided by Contractor.
(f)Notices. All notices or other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, pre-paid first-class mail, or by electronic mail:
If to Contractor:Data Driven Marketers LLC,
katheryn@datadrivenmarketers.com
If to Client:
___________________,___________________________
All such notices and communications shall be deemed to have been duly given: when delivered
by hand, if personally delivered; two (2) business days after being deposited in the mail, postage
pre-paid, if mailed as aforesaid; or on the date of receipt, if transmitted by electronic mail (with
electronic confirmation of receipt) prior to 5:00 p.m. on a business day or otherwise on the next
business day, provided receipt of such transmission shall be confirmed by follow-up notice
within seventy-two (72) hours by another method authorized above. Any party may from time to
time, by written notice to the other, designate a different address which shall be substituted for
that specified above.
(g)Captions and Headings. The captions and headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the meaning hereof
(h)Time of Essence. Except as otherwise provided herein, time is of the essence with
respect to all provisions of this Agreement in which a definite time for performance is specified;
provided, however, that the foregoing shall not be construed to limit or deprive a party of the
benefit of any grace period provided for in this Agreement.
(i)Governing Law; Interpretation; Tax Treatment .This Agreement shall be governed
by and construed in accordance with the laws of the State of Arizona applicable to agreements
made and to be performed within the state. The provisions of this Agreement shall be interpreted
in a reasonable manner to affect the purpose of the Parties and this Agreement. All of the Parties,
and their respective legal counsel, have mutually drafted this Agreement and it shall be
interpreted without placing any burden or rule of construction on either of the parties as being
responsible for the drafting of this Agreement. Neither party makes any representations to the
other regarding the proper tax treatment of the transaction reflected in this Agreement.
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(j)Court Jurisdiction. Subject to the above provisions of Section 8 of this Agreement,
the Parties hereto agree that the State Courts located in the County of Maricopa, State of Arizona
("Court'') shall have exclusive jurisdiction over any legal action or other proceeding between the
parties regarding this Agreement (an "Action”) and the Parties hereby consent to the exercise of
personal jurisdiction over them by the Court for purposes of resolving the Action.
(k)Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal, or unenforceable in any
respect for any reason, the validity, legality, and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired or affected,
it being intended that all other rights and privileges shall be enforceable to the fullest extent
permitted by law.
(l)Indemnification by Client. To the fullest extent allowed by law, Client agrees to
defend, indemnify, and hold Contractor harmless, from and against any and all losses, damages,
liabilities, claims, demands, actions, judgments, costs, and legal or other expenses (including,
without limitation, reasonable attorneys' fees, costs, expert costs, and expenses subsequent to the
Effective Date) incurred as a result of: (i) claims by third-parties relating to or arising out of facts
and circumstances occurring after the Effective Date and arising out of this Agreement; or (ii)
any breach of, or failure by Client to perform, any of its representations, warranties, or covenants
set forth in this Agreement.
(m)Attorneys' Fees. In any action or proceeding brought to enforce or interpret any
provision of this Agreement, or where any provision hereof is validly asserted as a defense, the
prevailing party shall be entitled to recover actual attorneys' fees and all other litigation costs
including without limitation costs awardable pursuant to the laws of the State of Arizona and
amounts payable to expert witnesses ("Costs”) in addition to any other available legal remedy. In
addition to the fees and Costs recoverable under the preceding sentence, the Parties agree that the
prevailing Party shall be entitled to recover actual attorneys' fees and Costs incurred in
connection with the enforcement of a judgment arising from such action or proceeding.
(n)Entire Agreement.This Agreement, including the SOW attached hereto, is intended
by the parties as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. This Agreement supersedes any and all prior restrictions,
promises, representations, warranties, agreements, understandings, and undertakings between the
parties with respect to such subject matter and there are no restrictions, promises,
representations, warranties, agreements, understandings, or undertakings with respect to such
subject matter other than those set forth or referred to herein.
(o)Successors and Assigns.This Agreement shall inure to the benefit of and be binding
upon the successors and permitted assigns of each of the Parties. Without the prior written
consent of the other party, neither party may assign its rights under this Agreement except that
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Contractor may assign its rights hereunder to any person or entity which controls, is controlled
by or is under the common control with Contractor, or to any corporation into or with which
Contractor may be merged or consolidated, to any partnership or limited liability in which
Contractor or one of its subsidiaries, owners, members, board members, or shareholders, is a
partner or member, as the case may be, or to any person or entity which purchases all or
substantially all of the assets of Contractor.
(q)No Third-Party Beneficiaries.Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, other than the Parties hereto and their
respective successors and assigns, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provisions herein contained, this Agreement and any conditions
and provisions hereof being intended to be and being for the sole and exclusive benefit of the
Parties and their respective successors and assigns, and for the benefit of no other person.
(r)Performance of Acts on Business Days . Unless specifically stated to the contrary, all
references to days herein shall be deemed to refer to calendar days. In the event that the final
date for payment of any amount, performance of any act, or the end of any other period
hereunder falls on a Saturday, Sunday or holiday, such payment may be made, such act may be
performed, or such period shall end, as the case may be, on the next succeeding business day.
(s)Confidentiality. The Parties mutually agree that the existence and terms of this
Agreement and all Confidential Information shall be maintained in strict confidence and no
disclosure of any of the foregoing will be made by Contractor or Client, except to such attorneys,
accountants, investment advisors, partners, members, investors, lenders, and other similar
persons as are reasonably required to evaluate and consummate said transaction. Nothing in this
paragraph shall prevent a party from disclosing or accessing the Confidential Information (i) in
connection with that party's enforcement of its rights hereunder; (ii) pursuant to any legal
requirement, any statutory reporting requirement or any accounting or auditing disclosure
requirement; (iii) in connection with the performance by either party of its obligations hereunder;
and/or (iv) to potential investors, participants, or assignees in or of the transaction contemplated
by this Agreement. The provisions of this paragraph shall survive any termination of this
Agreement.
(t)Authorization. Each person executing this Agreement on behalf of a party that is a
limited liability Client or corporation hereby individually represents and warrants that he or she
is duly authorized to execute this Agreement on behalf of such Party and that his or her
execution hereof causes this Agreement to become legally binding and effective on such limited
liability Client or corporation.
(u)Good Faith and Fair Dealing. Each of the Parties executing this Agreement
acknowledges that they are involved in a very close business and professional relationship which
they intend to continue for an indefinite period of time. The relationship requires common trust,
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confidentiality, a total commitment to forthright communications, and the necessity for mutual
support and cooperation in all matters relating to the operations of Client.
(v) This Agreement has been negotiated at arm's length and between persons
sophisticated and knowledgeable in the matters dealt with in this Agreement. In addition,
Contractor and Client, respectively, each represents and acknowledges that they have been
represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law or
legal decision that would require interpretation of any ambiguities in this Agreement against the
party that has drafted it is not applicable and is waived.
12. Non-solicitation
(a) During the Term of this Agreement and for a period of one (1) year after termination
or expiration, Client shall not, directly or indirectly,: (1) solicit, induce, or attempt to solicit or
induce any referral source, contractor, reseller, consultant, employee, customer, licensee, vendor,
or other business relation of Contractor to cease doing business with Contractor, or in an way
interfere with the relationship between any employee, contractor, reseller, consultant, customer,
or business relation of Contractor; or (2) sell to or solicit sales from any customer or account
which was a customer or account of Contractor as of the termination or expiration of this
Agreement or within one (1) year prior.
WHEREFORE, the Parties have entered and executed this Agreement to be effective as
of the Effective Date.
CONTRACTOR CLIENT
Signature: ____________________Signature:________________
Name:Katheryn Myle-Probst Name:__________________
Title:Chief Executive Officer Title:___________________
Date: ________________________Date:___________________
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Grady Miller
Town Manager
09/02/202209/05/2022
CLIENT, CONT.
Signature:________________
Name:__________________
Title:___________________
Date:___________________
Signature:________________
Name:__________________
Title:___________________
Date:___________________
Signature:________________
Name:__________________
Title:___________________
Date:___________________
Page 13 of 13
Aaron Arnson (Aug 27, 2022 19:55 PDT)
Aaron Arnson
Town Attorney
08/27/2022
Linda Mendenhall (Sep 3, 2022 07:28 PDT)
Linda Mendenhall
Linda Mendenhall
Town Clerk
09/03/2022
Fountain Hills + Data Driven Marketers
Statement of work for tourism
& economic development
digital marketing project
launch
Data Driven Marketers
projects@datadrivenmarketers.com
(480) 433-4055
Your project manager
Annelise Gile
Fountain Hills + Data Driven Marketers
Digital marketing project launch
Introduction
Subject.To help Fountain Hills reach its tourism and economic development goals, including
increasing website traffic and improving the functionality of both sites, Data Driven Marketers
(DDM) presents its research, strategy, and strategic design recommendations.
Purpose.Based on market data and diving into Fountain Hills’ competition and goals, we see
a clear track to increasing tourism and economic growth through digital marketing. By
reimagining experiencefountainhills.org and building highly accessible web pages across
both experiencefountainhills.org and fountainhillsaz.gov, packaging itinerary pages and
supporting marketing materials, and developing ongoing social media posts, DDM projects a
minimum 10% increase of website traffic by February 2023 and lasting brand equity and
recognition across the US.
Background.Please refer to DDM’s in-depth market research and analysis.
Project number.FH101
Project goals.
●Increase unique visitors to the website by 10%
●Improve the functionality of experiencefountainhills.org and fountainhillsaz.gov
●Create and promote itineraries on experiencefountainhills.org
This Statement of Work (the “SOW”) is made by and between Data Driven Marketers LLC, an
Arizona limited liability company (“Contractor”), and the Town of Fountain Hills (“Client”) and
is subject in all respects to the terms of the Master Services Agreement (“MSA”). All terms
specifically defined in the MSA shall have the same meaning when used in this SOW. In the
case of discrepancies between this SOW and the MSA, this SOW shall control. The terms of
this SOW are as follows.
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Fountain Hills + Data Driven Marketers
Digital marketing project launch
Project launch scope
Scope of work Schedule*Hours
Account management: Kick-off meeting & program
interviews
Throughout this project, DDM will support Fountain
Hills with a website redesign kick-off call to review the
new design and build the brand voice guide, as well as
several website review calls to share and finalize the
site before launch. While crafting the website, DDM
will conduct interviews for each program and conduct
outreach with the community to develop impactful
brand messaging.
August 15, 2022 34.5
Data management: Google Analytics and Tag
Manager configuration
DDM will fix, test, and deploy Google Analytics and Tag
Manager to measure the impact of implemented
marketing and provide Fountain Hills with a clear view
of engagements and online interest (from clicks to
calls, video views, and form submissions). In addition,
Fountain Hills will receive up to three (3) custom
events/integrations (i.e., Calendly event scheduling)
and admin/ownership access to each platform.
Please refer to
the digital
calendar
3
SEO: Keyword research
DDM's in-depth keyword research identifies what
keywords to target and in what order for all itineraries
on experiencefountainhills.org. The information also
guides Fountain Hills' overall market strategy.
Consultation and review call included. The data will be
delivered in two report formats: an in-depth
comparison spreadsheet and a PDF overview.
Please refer to
the digital
calendar
32
Local SEO: Google Maps and Apple Maps
optimizations
Please refer to
the digital
9
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Fountain Hills + Data Driven Marketers
Digital marketing project launch
DDM will optimize Fountain Hills' Google My Business
(Google Maps) and Apple Maps listing to drive new,
local views and work to correct local landmarks,
respond to FAQs, and conduct other optimizations
that will increase town visibility. DDM will work with
the team to solidify business information (NAP).
Optimization services include:
●Profile messaging enhancements
●Profile updates and management
●Geo-optimizations for client-submitted images
●Optimized Q&A and review responses
●Implementation of local SEO signals
throughout experiencefountainhills.org's
website
calendar
Web services: Delivery of website design
prototypes
DDM will deliver website design prototypes after
competitor research and review of top performing
tourism and business development sites. These
designs will accelerate experiencefountainhills.org's
website launch by providing clear and concise design
direction and interactive examples for your approval.
DDM will deliver proptypes that follow SEO/SEM best
practices and feature plenty of calls-to-actions (CTAs)
to support the online journey. We will conduct a cycle
of review and edits, and once they are approved,
Saffire will move forward with website design and
development.
●Itinerary page
●Homepage
●Main category page
●Business directory
●Business listing
●About/history page
●Events calendar
●Blog page
Please refer to
the digital
calendar
20
Web services: Suggested sitemap and website
navigation
DDM's suggested sitemap and website navigation
Please refer to
the digital
calendar
8
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Digital marketing project launch
service will strengthen experiencefountainhill.org's
website structure and improve customer experience
by providing insights into what needs to be updated
and why, as well as the value it will bring to Fountain
Hills. The information is delivered in two formats:
●PNG view of the suggested navigation
●Detailed PDF that shares our research and
suggestions
Consultation and review call included. The information
shared can influence fountainhillsaz.gov's information
architecture.
Web services: ADA accessibility scan and site
improvements
Before the new website launches, DDM will evaluate
both websites to flag and correct any accessibility
errors. At this time, we're planning for 4 hours of web
services work. Additional time will be billed at our
standard hourly rate of $150/hr.
Please refer to
the digital
calendar
4
SEO: Website SEO improvements
DDM's website SEO improvements work to increase
overall viewability and website visitors:
●URL remapping
●Site audit and error correction
●Backlink outreach to non-active pages
●SEO plugin configuration or improvements to
global SEO settings.
Please refer to
the digital
calendar
5
Social media: Configure and optimize social media
profiles
DDM's social media page optimization tasks cover
photo design work to build interest and increase
website engagement throughout social page
optimizations.
Please refer to
the digital
calendar
8
Social media: Develop social media strategy for
tourism
To strengthen Fountain HIlls' social media presence
and authority, DDM will develop a social media
Please refer to
the digital
calendar
14
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Fountain Hills + Data Driven Marketers
Digital marketing project launch
strategy that outlines specific messaging, key value
propositions, and targeting strategies to reach your
target audience across the following platforms:
Facebook, Instagram, LinkedIn, and Twitter.
●Recommended posting times
●Recommended hashtags and frequency
●Recommended topics
Social media: Develop social media strategy for
economic development
To strengthen Fountain HIlls' social media presence
and authority, DDM will develop a social media
strategy that outlines specific messaging, key value
propositions, and targeting strategies to reach your
target audience across the following platforms:
Facebook, Instagram, LinkedIn, and Twitter.
●Recommended posting times
●Recommended hashtags and frequency
●Recommended topics
Please refer to
the digital
calendar
14
Data management: Develop custom dashboard
setup to report on tourism marketing activity
The custom dashboard DDM develops will be
accessible to Fountain Hills at any time, featuring a
rolling weekly view of current marketing traffic, page
entrances, website leads, and more.
Please refer to
the digital
calendar
4
Data management: Develop custom dashboard
setup to report on economic development activity
The custom dashboard DDM develops will be
accessible to Fountain Hills at any time, featuring a
rolling weekly view of current marketing traffic, page
entrances, website leads, and more.
Please refer to
the digital
calendar
4
159.5 HOURS
** AN UPDATED PROPOSAL WILL BE SHARED FOR CONTENT ONCE THE
SITEMAP IS CREATED $25,000 TOTAL
INVESTMENT
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Fountain Hills + Data Driven Marketers
Digital marketing project launch
Deliverables and service terms
●Your dedicated account manager will be available for your staff between 8:00–4:00
PM MST–Phoenix Monday through Thursday.
●DDM will complete work and send it by midnight on the scoped date.
●DDM will deliver physical reports in an Excel or PDF format via email.
●Number of hours worked throughout the project is not to exceed 179.5 hrs.
●All outlines, content pieces, and optimizations that include brand messaging are
allotted one (1) round of revision, not to exceed an additional hour of work.
Personnel and qualifications.
●Account manager, five (5) years of public administration experience
●Art director, over 10 years of instructional design experience, led the Town of Gilbert’s
visual rebranding
●Content manager, 10 years of public administration experience
●Content writer(s) with industry specialties
●Corporate photographer, over 10 years in journalism and photography experience
●Corporate videographer, three (3) years of experience
●Digital marketing strategist, 10 years of data analytics and strategy experience
●Digital marketing generalist, one (1) year of experience
●SEM/paid ads expert, over 10 years of direct experience in competitive ads campaigns
and markets
●SEO specialist, three (3) years of experience
●Web engineer, over 10 years of experience in software and web engineering
Proposal agreement
During each project, the Contractor will customize the content and messaging and tailor
them specifically for each customer/business. The Client agrees to assist the Contractor in this
project by contributing creative input, giving honest feedback, and providing essential
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Fountain Hills + Data Driven Marketers
Digital marketing project launch
information related to the Client’s website. Contractor cannot make guarantees of error-free
content work and therefore welcomes feedback and will gladly provide additional
information if needed.
Duration.This agreement covers the period starting from August 8, 2022, through
September 15, 2022.
Schedule*.All timelines, schedules, and deliverables are estimates only. Contractor disclaims
any representations or warranties regarding the timelines, schedules, and deliverables and
shall not be held responsible for any delays or damages.
Payment schedule/rate.Data Driven Marketers will bill Fountain Hills at the point this
statement of work is signed for the first month of payment for the project launch phase. The
remaining payments will be billed on according to the schedule outlined. If Fountain Hills
does not pay the fee within net 5 days, the project will be placed on pause.
When our monthly engagement starts, or if on-demand services are requested, Data Driven
Marketers will bill Fountain Hills on the first of each month (net 5 terms). Data Driven
Marketers reserves the right to hold back products/services as a result of an unpaid balance.
Failure to pay invoices by the specified due date are subject to a 1.5% late fee (applied at the
end of the month).
Data Driven Marketers’ $150/hr fee is a blended rate across professionals on our team.
Resources needed from the Client:
●Access to Fountain Hills’ brand resources, logo files, and image files
●Administrative website access & hosting/DNS access to experiencefountainhills.org
and fountainhillsaz.gov
●Manager access to Google My Business
●Read & Analyze, Collaborate, and Edit access to Google Analytics (if available) and Edit
& Publishing access to Google Tag Manager (if available)
●Facebook Business Manager access
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Digital marketing project launch
●LinkedIn page admin access
●Twitter login access
●Signed Statement of Work
●And any and all resources reasonably requested by Contractor
Assumptions.By signing this agreement, Fountain Hills is assumed to have full ownership
over all brand resources, materials, and marketing assets.
x ______________
Initials
Fountain Hills representative
x ______________
Initials
Fountain Hills representative
x ______________
Initials
Fountain Hills representative
x ______________
Initials
Fountain Hills representative
x ______________
Initials
Data Driven Marketers representative
x ______________
Initials
Data Driven Marketers representative
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AJ
AJ
Amanda Jacobs (Aug 30, 2022 16:04 PDT)
Amanda Jacobs