Client retains the above Service Provider, and the Service Provider agrees to perform for the Client, the services set forth in each Statement of Work governed by this Agreement (the “Work”). Any Work outside of the executed Statements of Work governed by this Agreement will require a new Statement of Work for other services agreed to by the Parties in writing. If Client requests a variance in the Work, Service Provider will provide a breakdown of the price of the variation and any impact on the Date for Completion. Service Provider is not required to perform any variation unless the Parties have agreed on the price of the variation and any impact of the variation on the Date of Completion. All Statements of Work shall be governed by the terms of this Agreement. If there are any terms in the Statement of Work that conflict with this Agreement, then the terms of this Agreement shall control.
In exchange for the full, prompt, and satisfactory performance of all Work to be rendered to the Client the Service Provider shall be compensated in accordance with the Agreement Sum calculated in the Statement of Work.
2.1. The Client must make payment in accordance with the Fees & Timeline page(s) contained in Statements of Work.
2.2. Payment for invoices submitted by Service Provider shall be paid within the terms negotiated, and payment shall only be rendered electronically. Auto-pay is also available. Please let us know your preferred payment method.
2.3. The Client shall prepay or reimburse Service Provider for any fees associated with their payment processing vendor or system of choice
2.4. If the Agreement Sum is an estimate of the amount payable under the Fees & Timeline page(s) of the Statement of Work, the Client will pay the sum calculated in accordance with the Fees & Timeline page(s) as agreed in the Statement of Work.
2.5. Commencement invoices are to be paid within seven (7) days of the invoice date. Work will not commence without receipt of payment for the commencement invoice. Subsequent invoices are to be paid by the Client within thirty (30) days of the invoice date unless otherwise detailed in the Fees & Timeline page(s) of the Statement of Work.
2.6. Failure to pay invoices by the due date may result in the imposition of interest, debt collection costs and the suspension of the Works by the Service Provider. A 10% late fee is applied to late invoices. Each additional 5 days the invoice remains delinquent, an additional 10% late fee is incurred.
2.7. The standard terms of payment for the contracted engagement type (bucket, retainer, project) are defined in the Statements of Work. Any changes must be made in writing and signed by both parties.
2.8. Unless otherwise stated in the Statements of Work, all compensation referred to in this Agreement is exclusive of any regional government goods, use or service taxes.
2.9. The Client shall pay all taxes, duties, and government charges imposed or levied by any regional government on any invoice.
3.1.1. After Client signs this Agreement and all related Statements of Work, Service Provider shall send the Client an invoice for the month. Client’s first invoice must be paid prior to commencement of any work on the engagement by Service Provider.
3.1.2. Client agrees to pay Service Provider within 7 calendar days of the commencement invoice and 30 calendar days of each subsequent invoice. Failure to timely pay an invoice shall be considered a default under the terms of this Agreement.
3.1.3. Service Provider reserves the right to withhold delivery and any transfer of ownership of any current work if Client is in default.
3.1.4. All grants of any license to use or transfer of ownership of any Intellectual Property Rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges, or the costs of Changes.
3.1.5. All time spent by Service Provider on this engagement in pursuit of the goals and/or working process established in the Scope of Work is considered billable time, including maintenance and any communications with the Client including but not limited to telephone calls, emails and texts.
3.1.6. Service Provider acknowledges that it shall not incur any expenses during the course of rendering its Services for which Service Provider intends to seek reimbursement from Client before Client has expressly approved the expense in writing.
3.1.7. Monthly Retainer Fees are non-refundable once Service Provider delivers invoice to Client.
3.1.8. Upon the end of the initial retainer term (e.g., 12 months), unless notified in writing, the retainer will continue on a month to month basis following the initial terms of the retainer. Retainer rates following the initial retainer term will increase by 10% on an annual basis.
3.2.1. Service Provider and Client will agree on the scope of each project and on a schedule of milestone payments for each stage of the project.
3.2.2. All time spent by Service Provider on this engagement in pursuit of the goals and/or working process established in the Scope of Work is considered billable time, including maintenance and any communications with the Client including but not limited to telephone calls, emails and texts.
3.2.3. When Service Provider completes each milestone, Service Provider will send Client an invoice for the amount due pursuant to the schedule of payments. Client shall pay Service Provider the amount due per the invoice within 30 calendar days.
3.2.4. Client’s failure to pay the invoice in a timely manner may result in a Delay Event and a default under this Agreement.
3.2.5. Client will not receive a refund for work performed in each stage after Service Provider delivers an invoice for the milestone.
3.2.6. Client must pay Service Provider the entire amount of the commencement invoice before Service Provider begins any work on the project. Client agrees to pay Service Provider within 7 calendar days of the commencement invoice and 30 calendar days of each subsequent invoice. Failure to pay the invoice in a timely manner shall be a default under this Agreement.
3.2.7. Service Provider reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any Intellectual Property Rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges, or the costs of Changes.
3.3.1. Client and Service Provider shall agree on a specific amount of time for a Bucket agreement (eg. 40hrs, 100hrs, etc.). This represents the bucket size and is what the Client will be invoiced for prior to work commencing. When the hours are all used, the Client will be notified and a new invoice will be sent to the client to "refill" the bucket except in cases where they ask Service Provider to pause work. Client will be billed for all time spent by Service Provider on this engagement, including maintenance and any communications with the Client including but not limited to telephone calls, emails and texts.
3.3.2. Client will be charged a minimum of two (2) hours per month (if no other time is billed) for Service Provider maintaining its files and remaining ready to work on this engagement regardless of whether any additional work is performed by Service Provider on the engagement. Once a Bucket of time is commenced by Service Provider and the Client is provided an invoice for the Bucket of time, any hours not fully used will expire six (6) months from the date of the invoice for the bucket.
3.3.3. Once a bucket of time is commenced by Service Provider and the Client is provided an invoice for the bucket, there shall be no refunds for any unused hours in the bucket.
3.3.4. Client’s first invoice must be paid prior to commencement of any work on the engagement by Service Provider and each subsequent invoice will be due upon receipt of the invoice and will be considered late if not received within 30 calendar days from receipts of the invoice. Failure to timely pay an invoice shall be considered a default under the terms of this Agreement.
3.3.5. All grants of any license to use or transfer of ownership of any Intellectual Property Rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges, or the costs of Changes.
3.3.6. The Client may request an accounting of bucket hours, by making a request in writing to Service Provider. Service Provider will provide a written accounting of bucket hours to the Client within 15 days of the request.
3.4.1. Service Provider and Client will identify specific milestones to be achieved as part of the SOW. The milestones will include all time spent by Service Provider for the engagement, including maintenance, any communications with the Client, managing vendors on Client’s behalf, telephone, emails and texts.
3.4.2. Service Provider will issue an invoice to Client before starting work on the project. Client’s first invoice must be paid prior to commencement of any work on the engagement by Service Provider. Client shall pay each subsequent invoice within 30 calendar days. Client agrees that once Service Provider issues an invoice, Client is not entitled to any refund for any work covered by the invoice. Failure to timely pay the invoice shall constitute a default under this Agreement.
3.4.3. Any fees or costs incurred by Client from all self-service media platforms (including, but not limited to Meta, Google, LinkedIn, etc.), must be paid by Client directly to such vendors. Client understands and agrees that such fees or costs are not Service Provider’s responsibility. Client further understands and agrees that Service Provider is not responsible for anything arising out of or relating to interruptions in media services due to Client’s failure to timely pay media vendors.
3.4.3.1 Any fees of costs incurred by Client from any managed service or direct partner media buys (including but not limited to Tradr/Programmatic, Hulu, Spotify, WashingtonPost.com, etc.) will be pre-billed by Service Provider monthly or quarterly in accordance with the pre-approved media plan or ATB (authorization to buy) document.
3.4.3.2 All invoices for pre-billed managed service or direct partner media buys are due upon receipt; no associated work or media purchases will commence (or continue) until paid in full. Late payments on media buys will result in suspension of the associated campaigns and may be subject to additional fees required to re-activate them.
3.4.3.3 Service Provider is not liable for any loss in campaign performance as a result of pausing work due to late payments or Client's request to stop work.
3.4.4. Media buyer’s fee applies to all media spend that is managed by Service Provider. Service Provider will send an invoice on the 15th of each month for the previous month’s media spend. This will be a separate invoice for the media buyer’s fee. Once the Client is provided an invoice for media buyer’s fee, there shall be no refunds.
3.4.5. Failure to timely pay an invoice shall be considered a default under this Agreement. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Service Provider reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any Intellectual Property Rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges, or the costs of Changes.
3.5.1. The Service Provider shall complete the Work as stated in the SOW as quickly and efficiently as possible, understanding that with complex work, deviations from the timeline and working plan as we understand it on the first day of an engagement may occur. The Client may request certain Revisions. Any Revision to the Work beyond the included Revisions or requested after the design has already been put into development and for which a time estimate has been provided and agreed to shall be billed as Service Provider’s regularly hourly rate, then in effect upon the date of the request for the additional Revision and will likely delay the associated timeline. All Works shall be subject to inspection and/or testing by the Client during the Fixes Stage. Upon notice from the Client, the Service Provider shall correct any defective Works within seven (7) Days, or other number of Days reasonably agreed to by the Parties in writing, of the date of the notice. The Service Provider shall be entitled to a reasonable extension of time to complete the Works because of a Delay Event. Notwithstanding the terms of this Agreement, the Service Provider may reasonably suspend and resume the Works at its discretion by notice to the Client in writing and the Client waives any and all claims arising out of or in any way related to any suspension of the Works by the Service Provider.
4.1. “Master Services Agreement” means this Master Services Agreement and all addendums and Statements of Work under this Services Agreement.
4.2. “Background IP” means any intellectual property rights in design, materials, documents and methods of working that are owned by, or licensed to, any Party to this Agreement prior to this Agreement and that may be used in performing the Works and undertaking the obligations under this Agreement.
4.3. “Bucket” means a professional fee consisting of a collection of prepaid service hours.
4.4. “Bucket Billing Milestone” refers to when the prepaid hours in relation to a Bucket have been worked by the Service Provider.
4.5. “Day/s” means Business Days, namely Monday to Friday inclusive, except for public holidays.
4.6. “Completion” means the completion of the Works subject to any Fixes Stage list items.
4.7. “Completion Date” means the date on which Completion is reached, as evidenced by the Statement of Work agreement.
4.8. “Confidential Information” means any information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by either Party to the other Party whether before or after the date of this Agreement which ought reasonably to be regarded as confidential including, without limitation, information relating to the disclosing Party’s products, services, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, client lists, proposals, market opportunities and business affairs.
4.9. “Consequential Loss” means indirect or special loss including, but not limited to, loss of profit, loss of revenue, loss of business, loss of use, loss of reputation, business interruption, loss of overhead or loss of capital investment.
4.10. “Date for Completion” means the date shown in the Statement of Work by which date the Service Provider is required to complete the Works, but as amended for any extension of time.
4.11. “Delay Event” means:
iii) Changes in Legislative Requirements not reasonably anticipated by the Service Provider at the time of pricing;
vii) A failure to provide adequate feedback, approvals, or direction to maintain forward progress on active Works.
4.12. “Deliverables” means all of the services, goods, products, work, work product, data (including data collected on behalf of the Agency), items, materials and property to be created, developed, produced, delivered, performed, or provided by or on behalf of, or made available through, the Service Provider (or any agent, contractor or subcontractor of the Service Provider) in connection with any contract.
4.13. “Final Works” or “Final Files” means the final versions of Work in Progress produced by the Service Provider which shall be submitted to the Client for approval. This includes, but is not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modifications to Client Content, and Service Provider’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials. Final Works are exported from Working Files.
4.14. “Fixes Stage” means the post launch stage during which fixes may be requested by the Client.
4.15. “Foreground IP” means intellectual property that is or has been created, exemplified or developed (whether in whole or in part) by the Service Provider in the performance of the Works excluding all Deliverables, Final Works, Final Files, and Works.
4.16. “Legislative Requirement” includes:
ii)Certificates, licenses, consents, permits, approvals and requirements of organizations; or
iii) Fees and charges payable in connection with the foregoing.
4.17. “Party” and “Parties” means either the Service Provider or the Client as set out in Item 1 of the Schedule or both as the context requires.
4.18. “Fees & Timeline” means the schedule of rates and payment obligations set out in a Statement of Work which are subject to terms of payment as described in this Agreement.
4.19. “Representative” means the person appointed by each Party respectively as its representative and identified in the Statement of Work.
4.20. “Revisions” The terms “Major Revision” and “Minor Revision” refer to requested modifications to a deliverable that is included in the cost associated with an engagement. Revision requests must be made in writing and agreed to by Service Provider. A “Major Revision” is defined as a change or variation to an initially presented—or in-progress—design or copy concept, and is typically a change of less than 1/2 of the design or copy. A “Minor Revision” is defined as a change or variation to the styling, word-choice or placement of 1-3 design or copy elements. A “Minor Revision” typically changes less than ¼ of the design or copy. Any revisions to a work request beyond the included revisions or requested after the design has already been put into development and for which a time estimate has been provided and agreed to shall be billed at Service Provider’s regular hourly rate, then in effect upon the date of the request for the additional revision and will likely delay the associated timeline.
4.21. “Addendum” means any addendum to this Agreement and each Statement of Work under this Agreement.
4.22. “Statement of Work” means the description of the works (aka "deliverables") in the Statement of Work, including services, items, materials and other details, that are to be performed or supplied by the Service Provider. All Statements of Work will be governed by the terms in this Master Services Agreement.
4.23. “Service Hours” means the amount of time (measured in hours or fractions thereof) the Service Provider spends to work on and complete the work contracted in the Statement of Work.
4.24. “Agreement Sum” means the amount calculated in the Statement of Work
4.25. “Works” means all of the works (aka: "deliverables") described in the Statement of Work to be carried out in accordance with this Agreement and includes all items supplied pursuant to the Statement of Work.
4.26. “Working Files” are the files that were used to create a Final Work. They are generally layered files that allow for editing in a specific software. The file type depends on the program that was used. (eg: Figma | .fig file, Sketch | .sketch file, Illustrator | .ai file, Photoshop | .psd file, InDesign | .indd file, After Effects | .aep file, etc.).
4.27. “Variations” The Service Provider shall not vary the Works except as directed in writing by the Client.
4.27.1. If a variation is requested by the Client, the Service Provider shall provide a breakdown of the price of the variation and any impact on the Date for Completion.
4.27.2. The Service Provider is not obliged to perform variations unless the Parties have agreed on the price of the variation and any impact of the variation on the Date for Completion.
4.28. “ATB” or Authorization to Buy document In the context of paid media, an "ATB" or "Authorization to Buy" document refers to a formal document or approval process within an advertising or media agency. This document serves as an internal authorization for Service Provider to proceed with purchasing or booking media space or advertising placements on behalf of Client. It helps ensure that the agency has the necessary approvals and budget in place before committing to third party vendor payments.
5.1. Client will be assigned an Account Manager at Service Provider during the duration of this Agreement. This account manager will act as the primary point of contact with Service Provider personnel and will respond to all Client communications within 24 business hours on workdays, unless otherwise notified (and subject to reasonable exceptions). For purposes of this Agreement “business hours” are Service Provider’s hours of operation from 8:00 a.m. to 6:00 p.m. Pacific Standard Time, Monday through Friday, with the exception of US stock market holidays.
5.2. Service Provider will require one Client point of contact for the duration of this Agreement for clarifying requirements for functionality, usability, maintenance issues and final decision making authority regarding any work request. The point of contact must be the decision maker with regard to the decisions listed above and must be able to timely make and communicate decisions to Service Provider. Client shall provide the name and contact information for Client’s point of contact upon execution of this Agreement.
5.3. If Client changes its point of contact or if the Client’s point of contact will be unavailable for a period of time, the Client shall provide Service Provider reasonable notice. Any Client Point of Contact (and any replacement Point of Contact) is required to be available to answer questions arising from a work request within a reasonable time period), and to have the authority to make final decisions on a work request and Deliverables. In the event that Client has approved Deliverables, but errors such as (by way of example, not limitation) typographic errors or misspellings remain in the Finished Product, Client shall incur the cost of correcting such errors and ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry. If developing from placeholder or temporary content such as text or images (by way of example, not limitation), Client shall incur the cost of adjusting the developed Deliverable to accommodate final content.
5.4. Although Service Provider makes every effort to provide secure Finished Products, due to the nature of rapidly advancing technology, Service Provider can in no way guarantee that the Finished Products will not be subject to security breaches due to Client’s negligence in taking appropriate security precautions. Service Provider recommends the use of strong passwords and the observance of standard security practices. Client is solely responsible for tracking software updates and installing any necessary security patches, unless Client has an active agreement for ongoing website Maintenance with Service Provider.
5.5. The Representatives of each Party will be the primary contact for all matters relating to this Agreement. The Representatives shall have authority to make all relevant decisions in relation to this Agreement. The Representatives agree to promptly respond to communications between the Representatives and within one (1) Day for urgent communications.
5.6. All notices given under this Agreement must be in writing and hand delivered, or sent by prepaid post, or by fax or email to the Party’s Representative nominated in a Statement of Work. A hand delivered notice will be deemed delivered when received by the Representative or at a later time if specified in the notice. A notice sent by prepaid post shall be deemed received on the third (3rd) business day after the date of posting. A notice sent by fax or email is deemed received when the sender’s fax or email system generates a message confirming successful transmission of the entire notice.
The Parties agree that each of them:
6.1. Is fully acquainted with the terms of this Agreement;
6.2. Is fully acquainted with the specifications, reports, and other information relating to the Works;
6.3. Will cooperate with the other and its employees or agents; and
6.4. Will act reasonably and diligently in performing their obligations and exercising its rights under this Agreement.
6.5. that any materials provided to the other for incorporation into the Works will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
6.6. that any information provided by it will be complete and accurate. The Client agrees and acknowledges that the Service Provider will neither check nor accept any liability in connection with any information provided by the Client.
6.7. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND STATEMENTS OF WORK, SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION TO ANY WARRANTY THAT WORK IS ERROR-FREE, OR IS COMPATIBLE WITH ALL HARDWARE AND SOFTWARE CONFIGURATIONS, AND ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DELIVERABLES, INTELLECTUAL PROPERTY, TECHNICAL SUPPORT AND/OR SERVICES UNDER THIS AGREEMENT ARE PROVIDED “AS IS”.
Client and Service Provider (as applicable, the “Indemnifying Party” ) will defend, indemnify and hold harmless the other Party (the “Indemnified Party”) and its affiliates (and their respective employees, directors and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) arising out of any Claim to the extent such Claim is based on: (i) gross negligence or willful misconduct or fraud; (ii) any actual or alleged breach of any term of this Agreement, any SOW, or the Data Privacy Addendum by the Indemnifying Party; and (iii) any actual or alleged infringement of any third-party intellectual property rights. For purposes of this Agreement, “Claim” means any claim, action, audit, investigation, inquiry or other proceeding brought or instituted against a Party and/or one or more of its affiliates (and/or one or more of its or their respective employees, directors or representatives) by an entity other than an affiliate of that Party or the Parties to this Agreement..
Except with regard to the Indemnity set forth in Section 7 of this Agreement, neither party will be liable for any loss of use, interruption of business, lost profits, or any indirect, special incidental, or consequential damages of any kind regardless of the form of action whether in contract, tort (including negligence, whether active or passive) strict product liability, or otherwise even if it has been advised of the possibility of such damages. In no event shall either parties aggregate liability under this Agreement exceed the fees paid to Service Provider hereunder.
9.1. Nothing in this Agreement or Statements of Work, affects the ownership of Background IP.
9.2. Ownership of all Foreground IP immediately vests with Service Provider upon creation.
9.3. Ownership of Deliverables, Final Works, Final Files, and Works are and shall be a “work-made-for-hire” (as defined by the Copyright Act of 1976 and all amendments thereto) for Client, its successors and assigns. In the event that the Final Work (or any part thereof) is not deemed to be a “work-made-for-hire,” Service Provider hereby grants to Client an irrevocable, exclusive, royalty-free, fully-paid, fully-sublicensable and transferable license to use, develop, modify, create derivative works based on, combine with other works, market, sell, distribute, and otherwise exploit the Work throughout the world in perpetuity in all forms, formats, and media, whether now known or hereafter devised (“License”). Rights to Working Files, computer programs, and files, sketches, and images used in the steps prior to producing a Final Work are not transferred to the Client and remain the property of their respective owners. Service Provider may request permission to display all designs as examples of their work in their respective portfolios and the right to publish information and documents relating to the Works and Statement of Work.
Nothing in this Agreement shall be construed to create an employer-employee relationship between Service Provider and Client, nor any agency, franchise, joint venture, partnership or any other relationship between the parties and neither party shall have authority to obligate the other in any way.
11.1. If the Service Provider is developing a Client provided design, the Service Provider requires responsive designs to account for the following pixel-widths:
11.1.1. Mobile – 320px wide (this design should be considered for widths between 320px and 767px);
11.1.2. Desktop – 1170px wide (this design should be considered for widths between 768px and 1920px+); and
11.1.3. Any additional layout sizes that Client wishes to support will require a separate design. This ensures that Client’s design integrity is maintained.
11.2. Browser compatibility for any deliverables developed by the Service Provider will be ensured for the last two versions of Firefox, Chrome, Internet Explorer, Microsoft Edge, Safari, Mobile Safari and Android Browser at the time of Completion so long as the company that manages those browsers continues to support it.
11.3. The Service Provider maintains internal backups of active engagement code files. This backup system is not intended as a solution for the Client, rather as a code archive for the Works.
11.4. The Service Provider’s backup system is not guaranteed and does not support any content produced by the Client.
11.5. The Client is solely responsible for the backup and restoration of any relevant Works, finished products and associated data.
11.6. Due to the nature of rapidly advancing technology, the Service Provider can in no way guarantee that any Works or finished products will not be subject to security breaches generally or because of the Client’s negligence in taking appropriate security precautions.
11.7. The Client is solely responsible for tracking software updates and installing any necessary security patches unless the Client has an active agreement for ongoing website maintenance with the Service Provider.
11.8. The Service Provider reserves the right to work using any platform or tools they deem necessary (unless specifically stated otherwise) to complete the requested Works.
11.9. The Service Provider does not guarantee the specific file-types for Working Files or Final Files (unless specifically stated otherwise).
11.10. The Service Provider may use any software(s) they deem necessary to complete the work within an engagement unless specific software(s) are identified within the engagement’s statement of work.
12.1. Either Party may terminate this Agreement for its convenience at any time by giving the other thirty (30) Days’ notice in writing Client shall pay all amounts due as of the date of the notice within fifteen (15) days of the date of the notice.
12.2. Neither party shall be liable to the Client for any loss or damage arising out of such termination.
12.3. The Client may terminate this Agreement for convenience at any time by giving the Service Provider Thirty (30) Day’s notice in writing and paying all amounts due as of the date of the notice within fifteen (15) days of the date of the notice. Any additional planned and forecasted milestones that were expected to occur during the thirty (30) days notice period will also be due within fifteen (15) days of invoicing.
12.4. In the scenario of pre-billed managed service or direct partner media buys, Client may request to cancel a previously approved media plan and/or ATB with thirty (30) days of written notice. Client will be reimbursed for any unused dollars previously allocated to the associated media purchase within sixty (60) days from the date of cancellation.
Either Party may:
13.1. Terminate this Agreement immediately by giving notice to the other in writing, if any material breach of this Agreement by the other remains unremedied to the other party’s satisfaction within seven (7) days of notice to the other of such breach;
13.2. Terminate the Statement of Work immediately by giving notice to the Client if the Client:
13.2.1. Ceases to be able to pay its debts as they become due;
13.2.2. Enters liquidation, whether voluntarily or involuntarily;
13.2.3. Has a controller, receiver, managing controller, liquidator or administrator appointed;
13.2.4. Is declared bankrupt;
13.2.5. Assigns its estate for the benefit of creditors; or
13.2.6. Any other event analogous to any of the above events occurs.
13.3. Each party will notify the other immediately if the it ceases to be able to pay its debts as they become due, enters liquidation, has a controller or managing controller or liquidator or administrator appointed, or is declared bankrupt or assigns its estate for the benefit of creditors or any analogous event occurs.
Service Provider shall not be considered to be in default or breach of this Agreement, and shall be excused from performance or liability for damages to Client, if and to the extent it shall be delayed in or prevented from performing or carrying out any of the provisions of this Agreement, arising out of or from any act, omission, or circumstance by or in consequence of any act of God, labor disturbance, pandemic, landslides, cyclones, floods, washout, strikes or other industrial disturbances, sabotage, failure of Client or suppliers of materials, act of the public enemy, war, invasion, insurrection, riot, fire, storm, flood, ice, earthquake, explosion, epidemic, breakage or accident to machinery or equipment, unavoidable accident, or any other cause or causes beyond such Party’s reasonable control, including any curtailment, order, regulation, or restriction imposed by governmental, military or lawfully established civilian authorities, or by making of repairs necessitated by an emergency circumstance not limited to those listed above upon the property or equipment of the Service Provider or property or equipment of others which is deemed under the control of the Service Provider. If the Force Majeure event continues for a period of more than 90 days from the day the Force Majeure first occurred, either party shall may by notice in writing, terminate this Agreement and neither Party shall have any further obligations pursuant to this Agreement except for payment for Works performed by the Service Provider.
15.1. Pre-Mediation: If a dispute between the Parties arises out of or in connection with this Agreement, either Party may issue a notice to the other Party identifying and describing the nature of the dispute. Within four (4) Days of receipt of the notice of dispute, the Parties shall meet to seek resolution of the dispute (“Initial Meeting”). If the Parties do not resolve the dispute at the Initial Meeting, senior management of the Parties shall meet to attempt resolution of the dispute within seven (7) Days of receipt of the notice of dispute (“Second Meeting”). Senior management representatives must have authority to resolve the dispute.
15.2. Mediation: If the Parties do not resolve the dispute at the Second Meeting, the Party that issued the notice of dispute shall submit the dispute to mediation before the American Arbitration Association, unless the Parties have agreed to another alternative dispute resolution method. The Parties shall follow the rules then in effect of the American Arbitration Association for commercial mediation. The Parties shall attempt to agree on a mediation within five (5) days of submitting the matter to mediation. If the Parties are unable to agree on a mediator, then the American Arbitration Association’s rules for selection of a mediator shall govern. The cost of mediation shall be shared equally by both Parties. The mediation shall be conducted in accordance with California law and shall occur in the State or Territory where the Works are being performed.
15.3. Arbitration: Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. If a Party is required to file a Motion to Compel Arbitration, then the prevailing party in the motion shall be entitled to an interim award of reasonable attorneys fees and costs incurred as a result of the motion. The arbitration may be held via video conferencing services such as Zoom or Teams if, in the determination of the arbitration, it would be unreasonably difficult for either party to attend the arbitration in person. The arbitration shall be governed by California law. The arbitrator shall have the full discretion to allow discovery in the manner and amount as the arbitrator deems reasonable to permit the Parties adequate opportunity to present and defend the matter.
16.1. Definitions. As used in this Agreement:
16.1.2. “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;
16.1.3. “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in written or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the foregoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of this Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the Receiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a confidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the Receiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement, the fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the Transaction. All information Service Provider provides to the Client is Confidential Information and must not be disclosed to any person or entity, other than as provided for in this Agreement.
16.1.4. “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.
16.1.5. “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.
16.1.6. “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys, advisors, consultants, funding sources.
16.2. Nondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information
only to the Receiving Party’s Representatives, but only if such Representatives need to know the Confidential Information in connection with the purpose of this Agreement. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the Confidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its Representatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall safeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the same degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own proprietary and Confidential Information.
16.3. Restricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives for the purpose of the Agreement, and shall not otherwise be used in a manner detrimental to the Disclosing Party.
16.4. Notice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing Party may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party and its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in connection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom disclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is disclosed.
16.5. Return of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the Disclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations, studies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including any Confidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or storage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in connection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent required to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained in an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery procedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of this Agreement. Following such a request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an authorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.
If there is any ambiguity or inconsistency between the documents comprising the Agreement the document appearing higher in the list below will have precedence to the extent of the inconsistency;
17.1. Master Service Agreement;
17.2. The Statement of Work
18.1. Waiver: No Party may rely on the words or conduct of any other Party as a waiver of any right and a Party can only waive its rights under or in connection with this Agreement in the form of a written document signed by the other Party.
18.2. Survivability: Clauses 6.5, 6.6, 6.7, 7, 8, 9, 15 and 16 shall survive this Agreement.
18.3. Severability: Should any clause of this Agreement be severed from this Agreement and as a result of such severance this Agreement is deemed invalid, illegal or unenforceable or void, then the term shall be deemed to never have been included.
18.4. Choice of Law: The formation, construction, performance and enforcement of this Agreement shall be governed by the laws of the state of California without regard to the conflict of law provisions of such state.
18.5. Binding Effect: This Agreement shall be binding upon the successors and assigns of the respective parties.
18.6. Integration: This Agreement constitutes the sole and entire agreement of the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto.
18.7. Attorneys Fees: The prevailing party in any and all disputes, arising out of, related to or based upon this Agreement in any way, shall be entitled to reasonable attorneys fees and costs incurred during the entire such dispute, including such attorneys fees or costs incurred before filing for mediation and through any appeal and enforcement of judgment relating to the dispute.
18.8. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.
18.9. Copy/Original: A signed copy of this Agreement delivered by facsimile. email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
18.10. Electronic Signatures: This Agreement and related documents entered into in connection with this Agreement are signed when a party’s signature is delivered electronically, and these signatures must be treated in all respects as having the same force and effect as original signatures.
18.11. Ambiguity in Agreement: Should any term of this Agreement be deemed ambiguous, the Agreement shall not be deemed to be drafted by Service Provider, but shall be deemed to have been negotiated between the Parties.
18.12. Captions: All captions herein are for convenience or reference only and do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.
