This master services agreement is between Auviso Inc., a Delaware corporation (“Company”) and the person or entity accepting this agreement (“Client”), either by clicking a box indicating Client’s acceptance or by executing a writing that incorporating this agreement. The parties agree as follows:
1. Engagement. (a) Client hereby engages Company to perform social media consulting, development, marketing, amplification, advertising placement, production, and creative services (collectively, “Services”). The tasks and Work Product (defined below) associated the Services will be stated in one or more Statements of Work, Purchase Orders, or Insertion Orders accepted by both parties (each, an “SOW”). The parties may accept a SOW either by clicking a box indicating such party’s acceptance or by executing a writing incorporating such SOW. Each SOW fully describes the scope of the Services and Company’s compensation corresponding thereto (“Fees”). Each such SOW is hereby incorporated into this agreement. “Work Product” means the work product delivered to Client by Company in performance of the Services.
(b) Company acknowledges that any deadlines stated in a SOW are important and will make all commercially reasonable efforts to meet such deadlines. Failure to produce Work Product by a particular deadline will not, unless specifically stated in the applicable SOW, be grounds for termination of this agreement or any SOW then in effect. Client acknowledges that, in all circumstances, any deadline will be adjusted forward to the extent that Client does not timely provide or otherwise make available to Company theinformation or materials necessary for Company to perform the Services. Client acknowledges that a delay by Client in providing, supplying, or delivering to Company any Client Property (defined below) or other information or materials requested by Company may delay Company’s performance of the Services, and any such delay will not be considered a breach by Company of this agreement.
(c) Client hereby grants to Company, during the term hereof, a worldwide, non-exclusive, non-transferrable, royalty-free, fully paid-uplicense (“Company License”) to use Client Property (defined below) in connection with Company’s performance of the Services. “Client Property” means all products, information, inventions, trade secrets, domain names, trademarks, works of authorship, and all other information and materials provided or supplied by or on behalf of Client to Company for use in performance of the Services.
2. Term; Termination. (a) This agreement is effective as of the date stated in the introductory clause and will continue unlessterminated in accordance with this agreement.
(b) Except as otherwise provided herein, either party may terminate this agreement and any SOW then in effect, in whole or in part, at any time for Cause (defined below), and upon 30 days’ written notice for any reason other than Cause, by sending written notice of termination to the other party. If this agreement is terminated by Client without Cause, or terminated by Company for Cause, Company may retain any deposit paid by Client to Company. If such deposit is not sufficient to compensate Company for work performed, disbursements made, and costs incurred in connection with the Services through the date of termination, then Company may invoice Client for such deficiency, and Client shall pay Company such amount within ten days of receiving such invoice. If this agreement is terminated by Company without Cause, Company shall refund to Client, within 15 days of such termination, any deposit paid by Client (less any disbursements made and costs incurred in connection with the Services through the date notice of termination is received) for which the Services have not been provided. “Cause” means the breach of a material provision of this agreement and the failure to cure such breach within 30 days (but immediately in the case of a breach of section 4) after receiving written notice describing the breach.
(c) If either party terminates this agreement and any SOW then in effect for Cause, the non-breaching party will have no other liability arising out of the termination of this agreement or any SOW.
3. Compensation; Expenses. (a) Client shall pay to Company the Fees stated in each SOW then in effect. If any SOW is silent as to Company’s compensation for the Services corresponding thereto, Client shall pay to Company the Fees as follows: for productionservices, creative services, branding services, design services, SEO services, and software and website development services, 50% of the total fee for such services, as set for on the proposal or invoice for such services, on the date Client engages Company hereunder and 50% of the total project fee upon completion of such project; and for advertising placement campaigns, amplification campaigns, and press tours, 100% of the total fee for such services, as set for in the proposal or invoice for such services, on the date Client engages Company hereunder.
(b) Unless otherwise stated on an invoice, all invoices are due and payable within 30 days of receipt. Any outstanding balance 15 days past due will accrue interest at a rate of 1.5% per month until paid. Company may, at its election, terminate this agreement and any SOW then in effect upon ten days written notice in the event of Client’s failure to timely pay any outstanding balance exceeding $5,000.
(c) Client acknowledges its failure to fully pay when due any invoice relating to a placement campaign may result in advertising inventory becoming unavailable and that Company will not be responsible for any unavailable inventory resulting from such failure of Client.
(d) Client shall reimburse Company for expenses incurred in connection with or incidental to performance of the Services (“Expenses”). All such Expenses not stated in a SOW exceeding $500 (whether alone or in the aggregate) must be approved by the Client in advance of such Expenses being incurred. Unless otherwise stated in an applicable SOW, Expenses exceeding $1,000 (whether alone or in the aggregate) will be billed directly to Client.
4. Confidential Information. (a) Each party receiving Confidential Information (defined below) shall (1) treat as confidential, and preserve the confidentiality of, the Confidential Information of the disclosing party; (2) use the Confidential Information solely for the purposes contemplated by this agreement; (3) other than in connection with performing the Services, not copy or extract from such Confidential Information unless specifically authorized by the disclosing party; and (4) limit dissemination of the Confidential Information to personnel to whom disclosure is necessary for the purposes contemplated by this agreement. “Confidential Information” means any data or information (including third party data or information) related to a party’s business, marketing, technology, products, or services which is not publicly available or generally known outside a party’s organization and made available in connection herewith, regardless of the form or media and regardless of whether such data or information is marked or identified as “confidential” or “proprietary”.
(b) A party receiving Confidential Information shall promptly return or destroy all Confidential Information, together with all copies (regardless of the form of reproduction) and all extracts therefrom, at the disclosing party’s request.
(c) The obligations imposed by this section 4 will not apply to any information that: (1) is already in the possession of the receiving party as shown by documentation; (2) is or becomes publicly available through no fault of the receiving party; or (3) is obtained from a third party without breach by such third party of an obligation of confidence with respect to the Confidential Information disclosed.
5. Ownership; License; Other Services. Unless otherwise stated in an applicable SOW, Client will own exclusively all Work Product and all other inventions and improvements developed or created by Company that are customized and developed by Company specifically for Client in performance of the Services but excluding any Prior Work (defined below), provided that Client has paid to Company all undisputed amounts due hereunder. Company retains all interest in and to all Prior Work. Unless otherwise stated in an applicable SOW, Company hereby grants to Client a perpetual, non-sublicensable, non-exclusive license to use and exploit those aspects of the Work Product that are not customized and developed specifically for Client in performance of the Services (including any Prior Work), provided that Client has paid to Company all undisputed amounts due hereunder. “Prior Work” means any portion or element of the Work Product (including software, designs, and other works of authorship) which was previously developed by Company or which was not customized for Client or designed specifically for Client pursuant to any SOW. Client acknowledges that the Services and/or Work Product may enable and/or require access to and/or use of other services and/or software of Company and/or third parties (collectively, “Other Services”) and that such Other Services may be subject to Client’s acceptance of additional or different services agreements, terms of service, licenses, or similar agreements with Company or such third parties, as the case may be.
6. Remedies. The parties acknowledge that a breach, actual or threatened, of this agreement will cause irreparable harm to the non-breaching party, the amount of which may be extremely difficult to estimate, thus making any remedy at law inadequate. The non-breaching party will therefore be entitled to seek immediate injunctive relief and any other relief such party deems appropriate from a court of competent jurisdiction without having to post a bond or other security. This right is in addition to any other remedy available to the non-breaching party in law or equity.
7. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THAT DATA WILL NOT BE LOST, THAT THE SERVICES WILL RESULT IN SALES, THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES AND WORK PRODUCT WILL BESECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, FREE OR VIRUSES OR HARMFUL CODE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK, SYSTEM, OR DATA. COMPANY EXPLICITLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND. CLIENT ACKNOWLEDGES THAT THE SERVICES AND WORK PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMSINHERENT IN THE USE OF COMPUTER SOFTWARE AND HARDWARE, THE INTERNET, AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR DAMAGE OF ANY KIND RESULTING FROM SUCH LIMITATIONS, DELAYS, AND OTHER PROBLEMS.
8. Representations and Warranties. Company represents and warrants to Client that: (1) the Services and Work Product provided hereunder will be provided in a manner which meets generally acceptable standards in Company’s industry; (2) in performing the Services, Company will not knowingly use any third party confidential or proprietary information, or infringe the rights of another party, nor will Company disclose to Client, or bring onto Client’s premises, or induce Client to use any third party confidential or proprietary information; (3) Company’s performance of the Services and all terms of this agreement will not breach any agreement that Company has with another party; (4) Company will abide by all applicable laws and regulations in the course of performing the Services; and (5) no disabling code or other devices will be knowingly incorporated or present within any Work Product.
9. Indemnification; Insurance. Company shall indemnify, defend at its expense, and hold harmless Client, its officers, directors, affiliates, agents, and employees from any and all third party losses, liabilities, damages, claims, demands, litigation, expenses, and liabilities (including related costs and reasonable attorneys’ fees) of every nature (collectively, “Liabilities”) arising or resulting, directly or indirectly, from infringement of any third-party intellectual property rights by the Services or Work Product, provided that such Liability is reduced to a final adverse judgment or settled with Company’s consent, not to be unreasonably withheld. Client shallindemnify, defend at its expense, and hold harmless Company, its officers, directors, affiliates, agents, and employees from any and all Liabilities arising or resulting, directly or indirectly, from infringement of any third-party intellectual property rights by the use or exploitation of the Work Product by Client and use by Company of the Client Property. Company shall maintain comprehensive liability insurance with aggregate limits no less than $2,000,000 and this insurance shall name Client as an additional insured, coverage to be provided by a Best’s “A-” rated company or other company to be reasonably approved by Client.
10. Limitation of Liability. The Services and Work Product are sold “as is”. Neither party will be liable to the other for consequential,incidental, indirect, punitive, or special damages, including commercial loss, lost data, and lost profits (each, a “Loss”), however caused and regardless of legal theory or foreseeability, directly or indirectly arising under this agreement. Notwithstanding the foregoing, this limitation of liability does not apply to any breach of the obligations stated in section 4 or section 9 of this agreement.In no event will Company’s total liability for any Loss, whether in contract, tort (including negligence), or otherwise exceed the amount of compensation paid to Company hereunder.
11. Independent Contractor. Company is engaged in an independent business and will perform its obligations under this agreementas an independent contractor and not as the agent or employee of Client. Company will not have the authority to act for Client or to bind Client except as contemplated by the Services. Company and its personnel are not entitled to employment benefits of Client by virtue of performing under this agreement. Company is solely responsible for all matters relating to payment of its personnel, including compliance with worker's compensation, unemployment, disability insurance, social security withholding, and all other federal, state, and local laws, rules, and regulations.
12. Assignment. The parties may not assign this agreement or any rights or obligations under this agreement, by operation of law or otherwise, without prior written consent of the other party, which will not be unreasonably withheld; provided, however, Company may assign this agreement to a successor entity of Company (whether by asset or stock sale, merger, or otherwise) without Client’s consent.
13. Non-Solicitation. During the term of this agreement and for a period of 24 months thereafter (“Restricted Period”), neither party will (1) solicit, entice, or recruit any employee or consultant of the other party (or any of its affiliates) to leave the other party for any reason except in connection with general solicitations publicly made which do not specifically target the other party’s employees, or (2) solicit, entice, or divert any client or vendor of the other party to cease doing business with the other party or reduce the amount of business such client or vendor has customarily done or received an offer to do with the other party; provided, however, that the restrictions stated in the foregoing clause (2) will cease to apply with respect to Client on the date that Client terminates its business, exits its line of business, or otherwise ceases its operations prior to end of the Restricted Period. Neither party shall use the other party’s trademarks, trade names, or marketing materials without written consent of the other party, except as contemplated by the Services.
14. Notices. Any notices required under this agreement must be sent to the addresses of the parties stated below and must be deliveredin person, by email, by registered or certified mail with return receipt requested, or by a nationally recognized overnight courier.Notice will be deemed given (1) as of the first business day after such notice is deposited with an overnight courier, charges prepaid, return receipt requested; or (2) as of the day of receipt if such notice is deposited in first class U.S. mail, charges prepaid, return receipt requested; or (3) as of the day of receipt if such notice is hand delivered; or (4) as of the first business day after such notice is sent by email.
15. Accreditation; Promotion. Company retains the right to reproduce, publish, and display the Work Product (in whole or in part) in Company’s portfolios and websites, professional periodicals, and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with development of the Work Product in connection with such uses.Client acknowledges that Company may identify Client as a client on Company’s website and in any other media (including social media), and Company may place a link on its website to Client’s website.
16. Governing Law; Venue. This agreement, and all matters arising out of or in connection with this agreement, including tort and fraud claims, is governed by the laws of the State of New York, without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the state courts of the State of New York and to the jurisdiction of the United States District Court for the Southern District of New York, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
17. Severability. If any part of this agreement is found invalid, such invalidity will not affect the validity of remaining portions of this agreement, and the parties will substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Failure by either party to complain of any act or failure to act by the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. If any part of this agreement conflicts with any SOW, such SOW controls.
18. Survival. Sections 2(b), 3 – 10, 13, and 16 will survive the termination of this agreement.
19. Force Majeure. Except with regard to payment obligations, neither party will be liable to the other party arising out of delays or failures to perform under this agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected.
20. Entire Agreement. This agreement (including any SOW signed by both parties) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes any prior written or oral agreements between the parties.