Last Updated: Jan 28, 2019
THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into by and between WB Ventures LLC DBA Truu Digital (the “Agency”) and “Client” named in the related Proposal, Statement of Work (the “SOW”) and/or Order Form, which is incorporated herein by reference and made a part hereof (the “Order”). The Order shall include any subsequent Change Orders requested by Client and shall apply to all Services ordered by Client.
PLEASE READ THIS AGREEMENT CAREFULLY.
BY CLICKING “I ACCEPT”, SUBMITTING PAYMENT, ELECTRONIC SIGNATURE OR OTHERWISE ACCESSING OR USING THE SERVICES DEFINED HEREIN, YOU ARE CREATING A CONTRACT BETWEEN THE AGENCY AND CLIENT, CONSISTING OF (i) THE ORDER, (ii) THE APPLICABLE DESCRIPTION OF THE SERVICES SET FORTH IN THE ORDER, AND (iii) THIS AGREEMENT, AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING AGENCY’S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
WHEREAS, Client desires to engage the Agency to provide to the Client the services as set forth in one or more Orders (the “Services”).
NOW THEREFORE, the Agency and Client agree as follows:
Agency shall provide all the services described in the executed Statement(s) of Work (“SOW”). Additional consulting services may be contracted through Agency by means of a subsequent SOW executed between Agency and the Client. All work performed under any SOW is subject to the terms of this Agreement unless otherwise explicitly indicated in the SOW.
Each SOW will include Agency’s estimate of the cost to complete the project. Agency does its best to accurately estimate project costs upfront based on the scope as it is defined in the Client’s work request. The estimate is based upon the list of features documented in the SOW. Any feature not specifically referenced and estimated in the SOW is not included in the current scope of the project. All costs listed in the SOW are an ESTIMATE and NOT a FIXED BID.
For each associated SOW, as soon as Agency identifies that a task or deliverable may go over the estimate, the Client will be alerted, and the parties will mutually agree in writing to proceed before any additional work is done which exceeds the approved estimate.
Client is responsible for the delivery of Client deliverables as defined in the SOW or any other written form of instruction from Agency.
(i) Client-Provided Materials and Information. Client will provide Agency with the Client-Provided Materials as well as assistance and information reasonably requested by Agency to perform all work required under this Agreement. Client acknowledges and agrees that Client owns, is authorized to use, or otherwise legally controls the Client-Provided Materials and information.
(ii) Content. Client is responsible for all content. Client is legally responsible for all information, data, text, photographs, graphics, video, messages or other materials (“Content”) uploaded, posted or stored through Client’s use of this website and/or the Services. Client grants Agency a worldwide, royalty-free, non- exclusive license to host and use the Content in order to provide the Services. Client agrees not to use the Services for any illegal purpose or in violation of any applicable local, state, federal or international law. Client must provide all required warnings, information and disclosure. Client is encouraged to archive the Content regularly and frequently. Client is responsible for any Content that may be lost or unrecoverable through the use of the Services. Client agrees not to use the Services to upload, post, distribute, publish, reproduce, engage in or transmit any of the following, including but not limited to:
Agency takes great pride in the quality of our work, and as such, will have a QA lead assigned to all technical projects. The engagement of internal Client QA resources is also highly recommended. Agency is happy to work with a 3rd party QA team or with the Client's in house QA team. Agency will identify signoff milestones of deliverables, features, and sprints during the roadmapping phase of the project. The Client and their QA team will be responsible for ensuring that each milestone and the end product adhere to the agreed-upon requirements. Signoff by the PoC will be delivered in writing upon completion of each milestone. If a written response is not received from the PoC within 2 weeks after completion of the applicable milestone and/or end product, deliverable shall be deemed as automatically approved by Client.
In order to ensure that commitments can be met, Agency will book resources for the duration of the project window defined in the project schedule set forth in the SOW. The estimated cost of each deliverable and the overall budget are shaped by the schedule. Should the Client need to extend or accelerate the duration of the project, an additional fee may be assessed proportional to the impact on the project costs to Agency. Such additional fee shall be disclosed to, and approved in writing by, the Client in advance of such additional fee being imposed.
If the project is delayed by an unscheduled Client delay of over two weeks, Agency may put the project on hold and may reallocate resources to other Clients. As such, weekly status meetings, scrums, technical work and / or any other routine interactions shall temporarily cease. When the Client is ready to for it to resume, the project will be rescheduled based upon Agency’s availability and a 15% (of project estimate) rescheduling fee will be assessed. Any work and meetings requested by the Client during the hold period will be billed time & materials at $200/ hr per person.
Priority 1 [Critical]: The problem reported has immediate, serious business and financial exposure. An end-user is unable to work or perform some significant function of the platform. There is no acceptable workaround to the problem (i.e., the task cannot be performed in any other way).
Priority 2 [High]: The problem reported has immediate, serious business and financial exposure. An end-user is unable to work or perform some significant function of the platform. There is an acceptable and implemented workaround to the problem (i.e., the task can be performed in some other way).
Priority 3 [Normal]: The problem reported has low business and financial exposure. Implementing the request immediately will not result in significantly added value to the organization. An end-user is unable to perform some small function but is able to complete the majority of the tasks on the platform. There may or may not be an acceptable workaround to the problem.
Priority 4 [Low]: The problem reported has a minimal business and financial exposure. Implementing the request immediately will not result in significantly added value to the organization. An end-user is unable to perform some small function but is able to complete the majority of the tasks on the platform. There is likely an acceptable workaround to the problem.
Estimated Response Times
Support (Devops and General): Agency will provide front-line support responses according to the priority of the issue reported. Response times and resolution times defined as:
Goal Response Time
Goal Resolution Time
Priority 1 :Critical
Within ~4 business hours
Average resolution time is one (1) business day or less.
Priority 2: High
Within ~1 business day
Average resolution time is one (1) business day.
Priority 3: Normal
Priority 4: Low
Scheduled as part of the regular sprint cycle.
High Priority Coverage:
During pre-defined periods of high-priority coverage, Agency will extend business hours to include 12 hour coverage throughout the defined window during which all response times will occur in under 4 business hours. An additional cost, as defined in the SOW, will be applied to a high priority window.
Fixed Fee Projects: Agency will provide patches and bug fixes for any bugs or issues included in the scope of work that were introduced by Agency during the deployment to production / launch process. Bugs and issues found in features that were previously approved by the Client during the course of the project will not be covered by the warranty. Issues must be reported by the Client within the grace period of no more than 30 days following the date of project completion, as defined by the date the Client signs off on the deliverables. All bug fixes outside of the project scope or after the grace period are the responsibility of the Client. Should further support be necessary, a support SOW may be negotiated.
Constrained Time & Materials Projects: Agency will provide a clear release and exit plan including a final sprint to serve as a cleanup and polish period. This sprint will be allocated for in the budget estimate and all work will be billed using the standard hourly rate. Should the project budget exceed original expectations, Client may choose to limit the scope of the final post-release sprint. Agency does not offer a window of unpaid work.
On-Going Time & Material Projects: Projects which run over multiple budget periods, and have no delineated exit point, can have a warranty sprint(s) that will be planned and budgeted like a regular project sprint. Bugs and features will be tracked within the project backlog and scheduled in sprint planning. Each sprint is started once work is approved, and billed once work is completed. These projects have no implied warranty.
All payments under $5000.00 are due upon receipt unless otherwise defined in the SOW or Quote Terms and Conditions. Payments above $5000.00 will be invoiced and terms are net 15 days unless otherwise defined in the SOW or Quote Terms and Conditions. Payment will only be accepted via ACH or Credit Card. Any payable amount above $5,000 in which credit card is elected as the remittance type, will be charged a 2.9% merchant fee. Clients may avoid this fee by paying any amount above $5000.00 via ACH instead. Late payments will be charged a 3% per month fee compounded monthly (or the maximum allowable by law, if less). Should an undisputed payment be late, Agency reserves the right to freeze all work until accounts are settled. If the amount of any invoice is in dispute, Client shall pay any amount that is undisputed.
Time & Materials is billed hourly at a rate of $200 / hr and invoiced on a monthly basis in arrears unless otherwise defined in the SOW. Agency will review work requests in our project management system, plan sprints and provide a cost estimate per ticket based upon priority. Once approved, with an executed SOW in place, work will proceed. As soon as we know that a task may go over the estimate, the Client will be alerted in writing, and the parties will mutually agree to proceed before any work is done which exceeds the approved estimate. A breakdown of hours per billing period by task and / or by deliverable will be made available upon request.
Payment will be set by project milestone defined within the SOW. Upon written Client acceptance of the successful completion of the milestone an invoice will be sent. Any scope changes during the course of the project will require a written and approved change order.
Retainers are based upon the entire availability, or a fraction, of a Agency project team. We will structure the flow of work using a regular sprint planning session. Each month, the Client and Agency team will review all open tickets in the backlog together in order to determine which features should be included in the next sprint for strategy & scoping, UX / design, and development. We will allocate a predetermined percentage of our availability for time-sensitive requests which are set in sprint planning, and triage as they come in. Should the timely requests exceed planned availability, they will be added to the backlog. We are happy to consider flexing upon request if you have budget flexibility to exceed the monthly cap and if we have any additional availability. Additional hours used above the agreed retainer will be billed at a time & materials rate of $200/ hour. Unused retainer hours for any given month will not roll over into subsequent months unless otherwise defined in the SOW, proposal, or quote.
Licenses, media files, specialized software, server costs, code versioning services, project management tools, and any other assets or services required specifically for this project, pre approved by Client in writing and paid by Agency, will be billed monthly. Client will buy the materials or services directly unless specifically agreed upon in writing. Any effort required by Agency around purchasing tools, services or assets will be invoiced at the Time & Materials rate.
Downpayment: Any project estimate that totals $5000.00 or above will require at minimum, an initial payment equal to 50% of the estimate. The remaining 50% will be due upon project completion and sign off.
Client understands that Agency will comply with all applicable sales tax or similar laws, and that Client will be responsible for all taxes incurred.
Sales tax will be added as a separate line item in addition to the cost of services invoiced to the Client. Should Agency determine at any phase of the agreement that Sales tax is required, Agency will reissue all relevant invoices with the applicable sales tax applied.
Should Client be exempt from paying sales tax, Client must submit proof to Agency in digital format (scanned) in order to avoid being charged.
Agency will require one point of contact during the Agreement for clarifying requirements for design, key features, usability and maintenance issues. Agency requires this person be available to answer questions arising from the project within 2 business days (subject to reasonable exceptions), and to have authority to make design and related decisions on the system. Client's Primary Point of Contact (“PoC”) may authorize other officers or employees to respond to any issue requiring the technical expertise, or may designate a new point of contact by communicating such change in writing to Agency.
Client may modify these points of contact by email to the Project Manager assigned to the project.
Business Day / Hour: For the purposes of this contract, “business days” and “business hours' ' shall be defined as Monday-Friday, from 9 a.m. to 5 p.m. PST.
Project Tracking Software: Agency will manage work using a proprietary project tracking software (including wikis, issue tracking, Git integration, announcements and timelines) and google documents. The Client’s PoC, stakeholders, and collaborators will all have appropriate access to the project and all associated assets. This system will serve as a primary mode of communication, documentation, and reporting. Any approval made within the system by the PoC will be considered official written approval. If more than one Client contact needs access to this system, additional access fees may apply and will be sent to the Client for approval before access is given.
Agency project managers may ask for formal approval in any written communication method (Central, Slack, Email), and receive it back from the client. The project manager will articulate that it is a request for approval.
Due to the nature of our project load, Agency is not set up to support on demand services outside of business hours and any window of time otherwise defined within the SOW. Within the duration of this Agreement, Agency will make every reasonable effort to reply to inquiries within two business days except where the Client has been previously notified of a period of limited availability. Agency will respond in good faith but cannot guarantee any specific action within a given time frame.
Should a specific Service Level Agreement for technical support or devops be included in the SOW, response time expectations will be defined in the appropriate section and for those offering supercede our standard response timeframe.
As defined in the applicable SOWs, Agency will provide the completed deliverables (“Finished Product(s)”) to the Client in the form of source code files, object code files, data files, rendered assets, paper documents and other asset files. The Finished Product(s) does not include process materials, comps, prototypes, notes, or other assets generated throughout the project unless specifically stated within the SOW. The Finished Product(s) are commonly delivered to the Client through a file sharing service, the project management system, email and/or through a shared code repository for a limited period of time, with the expectation that the Client will download the deliverables they desire during the agreed upon window. The Finished Product(s) become the exclusive property of the Client upon acceptance of delivery.
The Finished Product(s) may include content from third parties, integrate with services, open source projects, or whose intellectual property rights (such as copyrights, trade secrets, patents, etc.) are entirely owned by Agency. Agency represents and warrants that it has a legal right to use any such existing content in the creation of the Finished Product(s). The Client’s right to use such content is subject to the licenses provided in this MSA, the SOW, and licenses specifically defined by their respective owners. Such code and other underlying technologies do NOT become the property of the Client, only the Finished Product(s). No rights to these dependencies are expressed or implied.
We take great pride in our work and like to share our combined success. Subject to the confidentiality protections in Section 13, Client grants Agency the right to show images and a description of the deliverable for sales and marketing purposes. Upon prior written consent by Client, Client may also agree to permit its name to appear on client lists used by Agency for sales and marketing purposes. Client warrants and represents that Client owns or otherwise controls the rights to the Content and grants Agency a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third-parties, and publicly display the Content on and through the Service and in promotional or advertising materials, and (ii) sublicense to third-parties such Content to the extent necessary for the creation and maintenance of, in part or in whole, such Services and materials. Client also grants Agency the right to link Agency’s website to any website that Agency develops on behalf of Client.
In the event that any aspect of this Agreement is dependent on a separate third party or the Client’s in-house team, the quality and punctuality of the Finished Product(s) (defined below) may be subject to said party’s ability to meet the required timelines and / or level of quality. Agency is not responsible for any delay or defect caused by separate third party or the Client’s in-house teams except in such cases where Agency has engaged such third-party to perform a portion of Agency's obligation under any applicable SOW.
Agency is not responsible for the uptime, performance or stability of any 3rd party service. Should an API or service change and in any way affect the application or alter scope, additional budget may become required and the timeline may be affected. Agency will document all required integration points.
Applicable deliverables from both Agency and the Client will comply with the accessibility standards set forth in the SOW at the time of delivery. Agency is not responsible for any accessibility requirements outside the specific deliverables defined in the SOW. Should no accessibility requirements be set forth in the SOW, the Client releases Agency from any obligation from accessibility compliance. Client is responsible for the accessibility compliance of all web content (user created text, images, video, sound, files) and any/all changes made to the Finished Product(s) by all parties aside from Agency.
The Client is responsible for choosing, paying for, and maintaining any required hosting solutions and associated services. This includes, but is not limited to test, staging, production dns, CDN servers, domains, code versioning hosting, project management tools, documents, data storage, media storage, or other paid services required for the project. Agency is NOT responsible for down time, poor performance, or loss of data caused by the hosting provider. Additionally, Agency is not responsible for any bug caused by changes on the host after the delivery of the work detailed in the SOW, including but not limited to updates to operating system, compile systems, code libraries and languages, or any changes resulting from security violations.
Agency provides DevOps services which includes the configuration of the servers, deployment infrastructure, caching and scaling support, monitoring of performance and establishing redundancy of services. Agency is not accountable for the cost of hosting infrastructure. Any changes in hosting cost due to planned or unexpected fluctuations will be the responsibility of the Client.
DevOps services typically operate on retainer. In the event of an emergency (an outage or imminent critical failure), if Agency is unable to contact the Client to secure additional budget, Agency has the discretion to spend up to 12 billable hours at the standard hourly rate in an effort to temporarily address the outage.
All DevOps communication response times will comply with the window defined within Response Time section of this Agreement and the applicable SOW.
Agency maintains internal backups of active project code and design files. This backup system is not intended as a solution for the Client, rather as a code archive through the duration of this engagement. While the Agency backup system is fully redundant, it is not guaranteed and does not support any content produced by the Client. The Client is solely responsible for the backup and restoration of the Finished Product(s) and any associated data should Agency not be engaged to provide ongoing DevOps services.
Although Agency makes every effort to provide secure Finished Product(s), due to the nature of rapidly advancing technology, Agency can in no way guarantee that the Finished Product(s) will not be subject to security breaches. Agency recommends the use of strong passwords and the observance of standard security practices. In order to minimize the chances of security violations, systems should be updated often. The Client is solely responsible for tracking software updates which may affect their system should Agency not be engaged to provide ongoing DevOps services.
Agency may, at its sole discretion, engage subcontractors to fulfill any portion of this Agreement or the SOW or delegate its obligations to a third party, provided that such delegation shall not relieve Agency of its obligations hereunder or thereunder.
Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of employer and employee between the parties. Agency shall be responsible for the payment of compensation to its own employees and subcontractors and shall be responsible for the proper reporting and payment of all federal, state, and local taxes due on payments made to Agency by the Client. The parties shall pay all employment taxes, including, without limitation, worker's compensation, statutory disability insurance and unemployment insurance, applicable to the respective party and its respective employees and subcontractors. The parties shall have the sole responsibility for providing such benefits to its respective employees and/or subcontractors.
Except as otherwise set forth in this Agreement, neither party shall be responsible for the responsibilities, taxes, or otherwise of the other party. Neither party nor any employee or subcontractor employed by either party shall act, appear to act, or be deemed for any purpose whatsoever to be an agent, employee, servant or representative of the other party.
If during or within two years of termination of this agreement the Client solicits and then hires or contracts with any employee or independent contractor of Agency, the Client will agree to pay Agency, a finder’s fee of 50% of the annual salary or contract fees offered to the contractor or employee. Said payment will be rendered within 30 days of hiring or contracting the contractor or employee.
The Client alone shall be responsible for: (a) the accuracy and adequacy of information and data furnished for processing; (b) any use made by the Client of the output of the software or any reliance thereon; and (c) obtaining the required licenses and respect copyright for any and all third party assets provided by Client including but not limited to fonts, media, and software. The Client shall also be responsible for the continued operation and maintenance of the computer equipment and third party software used with the Finished Product(s), and shall comply with all operational, environmental and maintenance recommendations and requirements of the applicable licensors, vendors and manufacturers.
The Client agrees that any liability of Agency relating to this agreement and the services performed shall be limited to the amount of fees actually received by Agency from the Client under this Agreement regarding the services in question, in the immediately preceding 6 calendar months. In no event shall Agency be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data, even if the Client is told that any such damages may occur.
Agency shall not be liable or responsible, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling any term of this Agreement when such failure or delay results from acts or circumstances beyond reasonable control. Such circumstances include, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, zombie apocalypse, riot, or other civil unrest, national emergency, revolution and insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client shall be entitled to give notice in writing to terminate this Agreement.
Agency’s Termination for Breach. Following any breach of any material term of this Agreement by a Party, the non-breaching Party may, after fifteen (15) days advance written notice identifying the specific breach, elect to terminate this Agreement or any SOW if the breaching Party has not cured said breach within such fifteen (15) day period following receipt of such notice.
Obligations Upon Termination. Upon termination of this Agreement for any reason, and full payment for any Services or related costs owed to Agency, Agency will transfer to Client or any third party designated by Client the campaign data consisting of any available reservations and contract information with Media Providers and by assigning where permitted any arrangements with Media Providers or others for Advertisement space and the rights and claims thereto and therein (the “Data Transfer”). During this Data Transfer, Client will pay Agency its hourly rate of $200 per hour for any Services undertaken to effectuate the Data Transfer. Upon Client’s written request, Agency will during the Data Transfer attempt to cancel (where permitted) any contracts designated by Client that are not to be performed after expiration of the Data Transfer, it being understood by Client that in some cases such cancellation may result in cancellation fees due from Client to the applicable Media Provider.
(a) Both Parties acknowledge that during the Term of this Agreement, each Party will have access to and contact with Confidential Information (as defined in this Section below) of the other Party. The Parties agree they will not (i) use any Confidential Information for its own benefit or for the benefit of any third party, and (ii) disclose any Confidential Information to any third party who does not have a need to know such Confidential Information in connection with the activities contemplated under this Agreement and if so disclosed will do so only under an obligation regarding the use and non-disclosure of such Confidential Information that is at least as protective as the obligation set forth in this Agreement. Each Party will protect the Confidential Information of the other Party using efforts consistent with those used to protect its own Confidential Information, but in no event less than a reasonable degree of care, and will use Confidential Information only for the purpose of the relationship and Services contemplated by this Agreement.
(b) For purposes of this Agreement, “Confidential Information” means, by way of illustration and not limitation, any and all information concerning the business of either Party or either Party’s Clients, Work Product (defined below), written records pertaining to Work Product, vendor information, equipment, trade secrets including client lists, processes, research, reports, technical data, know-how, marketing or business plans, forecasts, tax information, unpublished financial information or business results, budgets, prices, costs and employee lists that are communicated to, learned of, developed or otherwise acquired by either Party during the Term of this Agreement and thereafter.
(c) The Parties’ obligations under this Section B. Confidentiality will not apply to any information that: (i) was rightfully possessed by either Party before it was received from the other Party; (ii) is independently developed by either Party without reference to the other Party's’ Confidential Information; (iii) is subsequently furnished to either Party by a third party not under any obligation of confidentiality with respect to such information or data, and without restrictions on use or disclosure; or (iv) is or becomes public or available to the general public through means other than by any act or default of either Party.
(d) Upon termination or expiration of this Agreement or SOW for any reason and, in any event, upon one Party's request to the other, the requested Party will deliver to the other Party all Confidential Information in its possession; provided, that either Party may retain archival copies stored electronically (e.g., on backup tapes) solely for archival purposes.
Upon payment of all fees due hereunder, Client will own all right, title and interest in and to all intellectual property and work product created for Client by Agency under this Agreement that Client approves for use, including without limitation any work, content, themes, media plans, research, development assets, photographs, advertisement, promotion, keywords, campaigns, accounts preliminary drafts, plans for advertising, sketches, copy, layouts, transcripts, film, artwork, data and designs that are created by Agency during the performance of the Services (collectively, the "Work Product").
Each Party acknowledges that any breach of any of the provisions of Section 6.B. Confidentiality by it may result in serious and irreparable injury to the non-breaching Party for which the non-breaching Party may not be adequately compensated by monetary damages alone. Therefore, each Party agrees that, in addition to any other remedy it may have at law or otherwise, the non-breaching Party will be entitled to seek both temporary and permanent injunctive relief to the extent permitted by law without requiring the posting of a bond.
Agency represents and warrants that (a) it has the full power and authority to enter into and perform this Agreement, (b) all obligations to be performed hereunder will be performed with all reasonable care, skill and diligence (c) it has all necessary and appropriate rights to fulfill its obligations hereunder, (d) it will comply at all times with all laws and regulations applicable to Agency in any jurisdiction in which Agency acts, (e) its Services will be performed in a professional and workmanlike manner in accordance with applicable professional standards, (f) the individual executing this Agreement on behalf of Agency is authorized to do so, and (g) it has and will have no financial interest in any Media Provider from which Agency contracts for Services on behalf of Client under this Agreement. Agency will complete any work not in compliance with this warranty that is brought to the attention of Agency by Client in writing within thirty (30) days of such written notice from Client.
Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, EACH OF THE PARTIES MAKES AND GIVES NO OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY.
Agency Indemnity of Client. Agency will defend, indemnify and hold harmless Client and its directors, officers, volunteers, shareholders, employees and agents from and against any third-party claims, demands, loss, cost, damage, expense or liability (including reasonable attorneys' fees and costs) assessed against or incurred by the indemnitees that arises out of or relate to: (a) the grossly negligent or intentionally wrongful acts or omissions of Agency or its employees , independent contractors or agents; or (b) any claim that the Work Product, including any Advertisement or other materials delivered under this Agreement, infringes any intellectual property rights of any third party.
Client Indemnity of Agency. Client will defend, indemnify and hold harmless Agency and its directors, officers, volunteers, shareholders, employees and agents from and against any third-party claims, demands, loss, cost, damage, expense or liability (including reasonable attorneys' fees and costs) assessed against or incurred by the indemnitees that arises out of or relate to: (a) the grossly negligent or intentionally wrongful acts or omissions of Client or its employees, independent contractors or agents; or (b) any claim that any Advertisement or Social Post infringes any trademark of any third party or constitutes false advertising, business interference or a similar claim with respect to a third party’s rights or that any other work provided by Client to Agency for use in an Advertisement infringes the copyright of any third party.
Indemnification Claim. The indemnities in this Section are contingent upon: (a) the indemnified Party promptly notifying the indemnifying Party in writing of any claim which may give rise to a claim for indemnification hereunder; (b) the indemnifying Party being allowed to control the defense and settlement of such claim; and (c) the indemnified Party cooperating with all reasonable requests of the indemnifying Party (at the indemnifying Party's expense) in defending or settling a claim. The indemnified Party will have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing. An indemnitee will not make any settlement of any claims that may give rise to liability of an indemnitor without the prior written consent of the indemnitor.
Each Party’s maximum liability for direct damages under or in relation to this Agreement (regardless of form of action, whether in contract, negligence or otherwise) will be limited to the fees paid by Client to Agency during the six (6) month period immediately preceding the filed claim date. In no event will either Party be liable to the other Party for any consequential, special, incidental, punitive or indirect loss, damage or expense, even if it has been advised of their possible existence. Any award subject to indemnification hereunder shall be deemed a direct damage for purposes of this Section.
Client grants Agency the limited authority to act on Client’s behalf as a media agent in order to perform the Services approved by Client, and Client hereby retains Agency as Media Provider of Record for that purpose. Notwithstanding the Agency's designation of “Media Provider of Record,” the relationship between the parties hereto will not be one of a principal and agent nor exclusive, and Client has the right to use any other media service(s) entities and/or to purchase media space on its own.
(a) Agency will exercise commercially reasonable efforts in selecting Media Providers. (b) Agency will use commercially reasonable efforts to: (i) secure advantageous rates available from Media Providers; and (ii) to obtain available discounts and concessions from the Media Providers.
(c) Client will be entitled to its share of any discounts, rebates, allowances, refunds, concessions and similar adjustments and payments negotiated by Agency with any Media Providers that are actually received. Agency will either credit to Client’s account all such adjustments or remit directly to Client such adjustments within a reasonable time after receipt.
(d) Notwithstanding the foregoing, Agency reserves the right to pre-purchase in bulk and resell to Client advertising space from Media Providers, in which case Agency shall be entitled to retain a profit from such inventory when resold to Client.
(e) Subject to the terms and conditions in Section 6.A, if Client directs Agency to modify, cancel or terminate any previously authorized contract with a Media Provider, Agency will promptly take all appropriate action to meet Client’s request. Client acknowledges that it may be liable for early termination or modification fees or similar charges as a result of a modification, cancellation or termination under certain contracts with Media Provider(s) and Client will hold Agency harmless with respect to any costs incurred by Agency as a result of such modification, cancellation or termination.
Except as provided otherwise herein, any notices or communications regarding this Agreement from one Party to the other will be in writing and will be effective when (a) personally hand-delivered to the Party for whom intended, (b) upon confirmation of receipt when sent via email or facsimile, (c) upon confirmation of receipt when sent by overnight courier, signature requested or (d) after five (5) days following deposit of the same into the United States mail (certified mail, postage prepaid and return receipt requested). For project approvals and expense approvals under this Agreement, email communications are considered sufficient for purposes of written communications.
Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any acts of god, acts of war or breaches of the peace, acts of terrorism or threatened acts of terrorism, riots, civil disturbances, failure of a telecommunications or power carrier to provide adequate service, governmental regulations or interference, or any similar causes beyond the reasonable control of and is not caused by the negligence of the performing Party, the Party affected in its performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence. However, should the affected Party’s inability to perform continue for a period of thirty (30) days or more, the other Party may terminate this Agreement upon providing ten (10) days written notice.
Waiver and Severability. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party. If any term or provision of this Agreement will be found by a mediator, arbitrator, or court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, but such provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest extent possible the intent and agreements of the Parties set forth herein.
Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and will not be considered in interpreting or construing this Agreement.
Survival. The provisions of Sections 2, 6.A, 6.B, 6.C, 6.D, 6.E, 6.F, 6.G, 6.H, 6.I, 6.J, 6.K and 6.L will survive any termination of this Agreement.
(i) This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by Agency, except to a successor to the whole of Agency’s business, without the prior written consent of Client. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions will be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the Parties hereto.
(ii) This Agreement and the rights and obligations hereunder, may not be assigned, transferred, and/or delegated, in whole or in part by Client, except to a successor of the whole of Client’s business, without the prior written consent of Agency
Access to and Retention and Examination of Records. Client will have the right during normal business hours as defined in section 3.B and with three (3) days’ written notice to examine Agency’s records exclusively related to expenditures on behalf of Client’s business, as well as any and all contracts, correspondence, books and other sources of information relating solely to Client’s business. However, Client will notify Agency in advance of any such examination to ensure that such records are made available to Client at Agency’s premises and such Examination may not occur more than once during any six (6) month period under this Agreement.
All claims and disputes between the Parties relating in any way to this Agreement or the transactions contemplated hereby which cannot be resolved through their good faith discussions (a “Dispute”) shall be submitted to mandatory non-binding mediation by either Party to an impartial mediator appointed through the Judicial Arbitration and Mediation Services (“JAMS”) in Seattle, Washington, for a good faith effort at resolution. The mediator shall review the Dispute within thirty (30) days of submission or at such other time provided the Parties so agree. Any mediation fee shall be paid equally among the Parties. Any Dispute which is not resolved through such mandatory mediation shall be settled by final and binding arbitration before a single neutral arbitrator of JAMS who shall be a retired judge in accordance with the then current JAMS Comprehensive Arbitration Rules and Procedures in Seattle, Washington. Judgment on the award rendered by the arbitrator may be entered in any court in Washington State. Each Party agrees that the Dispute as mediated and/or arbitrated and the final resolution of such Dispute shall be considered to be confidential information. The prevailing Party in any such arbitration shall be awarded its reasonable attorneys’ fees and costs as determined by the arbitrator.
Any and all disputes that may arise between Agency and the Client regarding the terms of this Agreement shall be construed and enforced in accordance with the laws of the State of Washington. In any action arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.