THIS MASTER SERVICES AGREEMENT ("MSA") sets forth terms and conditions entered into by and between Acquiregy LLC, a California corporation ("Provider"), and Client executing a statement of work also executed by Provider and referencing this MSA (as applicable, the "Statement of Work" and together with this MSA, the "Agreement"). Provider and Client may each be referred to herein as a "Party" and together as the "Parties". This MSA shall be effective as of the effective date of the Statement of Work.
All work to be performed by Provider must be specified in an applicable Statement of Work. A Statement of Work shall not be effective unless fully executed by duly authorized representatives of both Parties, and Provider shall not be obligated to perform any work until such time.
All statements and agreements concerning time, fees, and other expenses (including any fixed price or not-to-exceed quotations in the Statement of Work) are good faith estimates based upon information furnished by Client and circumstances existing at the time made. The Statement of Work is subject to equitable adjustment upon any material change in such information or circumstances, the occurrence of delays (as contemplated in Section 1.3 below), or modification of the scope, timing, or level of work to be performed by Provider. Client acknowledges that delays not attributable to Provider and/or any agreed change may affect the project or campaign schedule and/or the fees and expenses payable to Provider.
Provider, or its subcontractors engaged to perform work hereunder, shall be excused from delays in performing or from a failure to perform the Agreement to the extent that such delays or failures result from causes beyond Provider's (or its subcontractors', as the case may be), reasonable control. Without limiting the generality of the foregoing, Client acknowledges that Client's failure or delay in furnishing necessary information or products, or failure by Client in completing tasks required of Client or in otherwise performing Client's obligations hereunder or under the Statement of Work, and any explicit assumption contained in the Statement of Work which is not met or is incorrect or otherwise fails to hold shall be considered an excusable delay or excusable failure to perform by Provider and may impede or delay completion of Services and/or result in additional fees and expenses chargeable to Client. In addition, if a Campaign (as defined in Section 2.4 below) is delayed by an aggregate number of thirty (30) days or more through no fault of Provider, then Provider may elect to terminate work under the Statement of Work.
Client must provide Provider with advance written notice of at least ten (10) days if it intends or expects to postpone the start date or any work contemplated in the Statement of Work.
Parties shall designate an individual manager to represent the implementation of the Statement of Work. Client may change its designated manager upon written notice to Provider. The designated Client manager shall be the primary point of contact for Client and responsible for the day-to-day coordination of activities between the Parties as contemplated by the Statement of Work.
In the event that Client wishes to request a modification to the Statement of Work (including any scope, even if at no cost) (a "Change Request"), Client shall provide Provider with written notice detailing the requested changes. Provider shall then provide a written response estimating the impact, if any, that the requested modifications would have on the scope, schedule, fees, or other material terms in the Statement of Work. Provider may also propose Change Requests on its own initiative. Neither Party shall be compelled to agree to Change Requests. If the Parties agree to a Change Request, then such agreement must be reflected in a written change order indicating an amendment to the Statement of Work (a "Change Order"). No changes to the Statement of Work shall be effective absent a Change Order fully executed by duly authorized representatives of both Parties, and Provider shall not be obligated to modify or perform any additional work until such time. Provider shall continue performing services in accordance with the applicable Statement of Work unless and until the Parties agree in writing on the change in scope of work, scheduling, and fees therefor in a Change Order.
Provider may render those standard services specified in the Statement of Work, subject to this MSA and upon the terms and conditions of the Agreement ("Services").
Provider's standard services involve coordinating contract partners ("Influencers") who order a particular Client product ("Product") and may then complete a Qualifying Online Post (as defined in Section 2.3 below) after utilizing the Product. In connection with the Services, and for no additional consideration other than Client's having entered into the Agreement, Client hereby grants to Provider and all Influencers full permission to use the names, likeness, logos, trademarks, slogans, images, social media links, tags and/or handles, and descriptions of Client and its Products.
A "Qualifying Online Post" is a post, review, message, statement, publication, image, text, video, or other communication made by an Influencer on or through a generally known social media service, on a Client's website, on a seller's website, or otherwise on a publicly available site (such as, without limitation, a third-party review website or a hobby or special interest magazine website).
The provision of Services whereby Provider coordinates Influencers with respect to a particular Client Product for a period of time may be known as a "Campaign". Campaigns may be, but need not be, grouped and administered together as a "Program". Statements of Work should specify the target start date, duration, and end date of each Campaign or Program.
Provider shall have full and sole discretion as to which Influencers to retain.
Provider makes no representations, warranties, or covenants as to or relating to posts, reviews, messages, statements, publications, or other communications by Influencers, whether or not constituting Qualifying Online Posts; except that Provider covenants that its standard contract form with Influencers will provide that Influencer shall grant to Client a non-exclusive, irrevocable, perpetual, worldwide, transferable, and royalty-free right and license to copy, republish, and otherwise utilize all Qualifying Online Posts. Provider asserts no exclusive rights or ownership to Qualifying Online Posts; provided, however, Client agrees that Provider may copy, republish, or otherwise utilize all Qualifying Online Posts in any fashion Provider wishes.
Provider makes no representations, warranties, or covenants as to the quality of Influencers or Qualifying Online Posts, or as to the general success of any Campaign or Program. All Services (including, without limitation, Client's use of Provider's websites and related functionality) are rendered AS IS, AS AVAILABLE, and WITH ALL FAULTS and without warranty of any kind and will be accepted by Client at Client's sole risk.
Provider may render additional or non-standard Services as specified in the Statement of Work, subject to this MSA and upon the terms and conditions of the Agreement.
Any non-standard Services should be set forth in a Statement of Work including, at a minimum, the scope of Services and deliverables, the project/work schedule, and associated fees, and should also set out any estimates, assumptions, conditions, dependencies, phases/milestones, furnished products, third-party solutions, and accepting, testing, and completion criteria if and as applicable and material. Unless otherwise set forth on a Statement of Work, any Services rendered to Client may be invoiced on a time and materials basis with Provider time charged at its then-prevailing standard rates.
Fees for Services (and if applicable, deliverables, furnished products, or third-party solutions) payable to Provider should be set forth in the Statement of Work. Any work performed by Provider which is outside the scope of work in the Statement of Work and ordered by Client or is performed by Provider due to a breach by Client or a postponement or delay or failure of an assumption or condition not due to the fault of Provider, shall be charged at Provider's then-prevailing standard rates on a time-and-materials basis. Provider may require a deposit before commencing Services.
The Statement of Work may provide for compensation to Provider based on the duration of the Campaign or Project, based upon the number of Influencers, based upon the number of Influencers submitting at least one Qualifying Online Post, or based upon the number of Qualifying Online Posts, or otherwise as the Parties may agree. In addition to, or in the alternative, a Statement of Work may provide for a management fee payable to Provider regardless of the number of Influencers or Qualifying Online Posts.
Provider's standard services program contemplates Influencers purchasing Client's Products, and then Influencers being reimbursed by Provider for Product purchase costs if and when they make Qualifying Online Posts ("Qualifying Purchase Reimbursements"). In addition to the fees contemplated above, Client shall pay to Provider amounts equal to the amounts Provider reimbursed Influencers for their purchases of Products.
Unless otherwise specified in the Statement of Work, Client shall also be responsible for reimbursing Provider all the pre-approved expenses incurred for travel, lodging, and other ancillary out-of-pocket expenses or items paid or incurred in performing Services; provided, however, that Provider shall obtain Client's approval for any expenses which are not scheduled or otherwise contemplated in the Statement of Work.
Within thirty (30) days after the end of a Campaign or Program, Provider may create a final report with respect to the Campaign or Program which indicates: the number of Influencers, the number of Qualifying Online Posts, Qualifying Purchase Reimbursements, and the determination of Provider fees, Qualifying Purchase Reimbursements, and other costs, expenses, and interest pursuant to the Agreement, such being applied to any outstanding deposit balance with the remainder being payable by Client to Provider.
Unless otherwise specified in the Statement of Work, Provider may invoice Client monthly.
If a Statement of Work required a Client deposit for a particular Campaign or Project and Client has an account credit balance after the end of such Campaign or Project (as shown on the final report therefor), then Provider shall refund such credit balance to the Client unless Client instructs otherwise.
Payments are due within fifteen (15) days from the date of invoice. Payments shall be made via credit card or via wire or other electronic transfer of immediately available funds according to instructions on the invoice. In the event payment is not received within such forty-five-day period, Provider may charge interest on amounts outstanding at the rate of one percent (1%) per month or the highest rate allowable by applicable law, whichever is less. If Client in good faith disputes any portion of any invoice, then Client shall timely submit payment to Provider for the undisputed portion of such invoice and promptly provide written documentation identifying the disputed portion and supporting Client's position, and the Parties shall then exercise reasonable efforts to conference within ten (10) days in an attempt to identify and potentially resolve disagreements. If the Parties are unable to resolve disagreements, then the matter shall be further handled as a Dispute subject to Section 9.11 below, subject to Section 4.9.
If a payment not subject to good faith dispute is over forty-five (45) days late, or if a payment subject to good faith dispute is over ninety (90) days late, then Provider, in its sole discretion and in addition to any other remedies available to it herein or otherwise under law, may (i) initiate the Dispute resolution process, (ii) take other action to collect payment, and/or (iii) stop work and re-assign its personnel and other resources. Client shall reimburse Provider for all of Provider's costs and expenses (including reasonable attorneys' fees) incurred in investigating the matter and attempting to collect any amounts past due under the Agreement, and all costs associated with work stoppages for late payment shall be borne fully by Client. Nothing herein shall in any way limit or waive any remedies or relief (including, without limitation, injunctive relief) available under law to Provider.
Client shall pay all taxes, assessments, and fees applicable in connection with the Services, whether national, federal, state, or local, including, without limitation, sales, use, value-add, excise, personal property, customs fees, import duties, stamp duties, and any other similar taxes and duties, however designated or levied; provided, however, Provider shall be responsible for its own taxes on net income. Provider shall invoice Client for any taxes properly payable by Client that are required to be collected by Provider pursuant to any applicable statute, rule, regulation, or other requirement of law.
Each Party (as applicable, a "Recipient") agrees to retain in strict confidence any information provided to it by the other Party (as applicable, a "Discloser") that is marked, labeled, or otherwise designated as confidential or proprietary or that Recipient knew, or reasonably should have known, was confidential due to the circumstances surrounding the disclosure by Discloser ("Confidential Information"). Confidential Information shall not include any information that (i) is generally known to the public at the time of disclosure, (ii) is received by Recipient without restriction from a third party without any breach by such third party of any confidentiality, fiduciary, or other obligation to the Discloser, (iii) is published or otherwise made known to the public by Discloser, or (iv) is generated independently by the Recipient without use of or reference to Discloser's confidential information. Furthermore, Client acknowledges and agrees that the Agreement itself and all information, materials, and content related to the Services and the types of services the Provider offers is Confidential Information except as pursuant to Section 5.3 below. Recipient shall use at least the same standard of care with Discloser's Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose Confidential Information in order to respond to a valid order of a court or other governmental body or any political subdivision thereof, or as otherwise required by law, provided that the Recipient (A) informs Discloser as soon as reasonably practicable of the required disclosure, (B) limits the disclosure to the required purpose, and (C) at Discloser's request and expense, assists in an attempt to object to or limit the required disclosure. Upon termination or expiration of the Agreement, or upon Discloser's request, Recipient shall return or destroy all Confidential Information provided under the Agreement. Each Party acknowledges that breach of this provision by it would result in irreparable harm to the other Party, for which money damages would be an insufficient remedy, and therefore that the other Party shall be entitled to seek injunctive relief to enforce the provisions of this Article V. The Parties hereby agree and acknowledge that this Article V supersedes any prior confidentiality agreements by and between the Parties with respect to Confidential Information disclosed after the effective date of this MSA. Nothing in this Section 5.1, however, is intended to prevent Provider from sharing information with Influencers.
Client covenants that during term of this MSA and for a period of one (1) year thereafter Client will not, directly or indirectly, through a corporation or other entity, unincorporated business, affiliated party, successor or assign, or otherwise, solicit, hire for employment or engagement, or work with, on a full-time, part-time, consulting, advising, or any other basis, any person who is, or was within the prior twelve months, an employee of Provider or any affiliate of Provider without prior written permission from Provider.
The content, terms, and provisions of this MSA and all Statements of Work shall remain strictly confidential; provided, however, that either Party may identify the existence of a business relationship between the Parties; and provided, further, that Provider may develop, utilize, and publish case studies and other information derived from or relating to Client, Programs, or Campaigns for internal or external marketing purposes.
Subject to the confidentiality provisions in Section 5.1 above, Provider shall not be precluded from rendering services to other clients that are competitive with Client, irrespective of any similarity to the Client, Products, or materials which might be delivered to Client pursuant to the Agreement. Nothing in the Agreement shall be construed as precluding or limiting in any way the right of Provider to provide standard, nonstandard, consulting, development, or other services of any kind of nature whatsoever to any individual or entity as Provider in its sole and absolute discretion deems desirable.
Subject to the confidentiality provisions in Section 5.1, Client acknowledges that Provider and its employees and agents shall be free to use and employ their general skills, know-how, and expertise to use, disclose, and employ any generalized ideas, concepts, knowhow, methods, techniques, or skills gained or learned during the course of rendering any Services.
Provider makes no representation, warranty, or covenant of any kind, type, or nature concerning either Party's compliance with contracts, agreements, terms of service, policies, guidelines, codes of conduct, standards, rules, prohibitions, restrictions, or other terms or conditions with or of any third party including, without limitation, involving an online platform or service of a social media service, a third-party seller's website, seller service, reviewer, or other interest organization. It shall be Client's sole responsibility to identify, analyze, interpret, and comply with all third-party contracts and other obligations and ensure compliance therewith, as may involve Client, Client's Products, the Services, or Influencers and actions of Influencers involving the Client or any of its Products. Client hereby releases Provider and all Influencers from, and Client waives any and all claims or rights therein which it may have nor may have in the future with respect to any contracts, agreements, terms of service, policies, guidelines, codes of conduct, standards, rules, prohibitions, restrictions, or other terms or conditions with or of any third party (including, for example and without limitation, those of Amazon.com, Inc. and its affiliates).
Provider DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) BASED ON, ARISING OUT OF, RELATED TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT A PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER OR NOT ALLEGED TO ARISE BY STATUTE OR COMMON LAW OR OTHER LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING, AND WHETHER EXPRESS OR IMPLIED OR OTHERWISE. IN ADDITION, Provider EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION BASED ON, ARISING OUT OF, RELATED TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT TO ANY PERSON OTHER THAN THE ORIGINAL CLIENT PARTY TO THE AGREEMENT. CLIENT ACKNOWLEDGES AND AGREES TO THE AFORESAID DISCLAIMERS.
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OTHERWISE TO THE CONTRARY, IN NO EVENT SHALL Provider BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ANY OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST INCOME OR PROFITS OR BUSINESS INTERRUPTION OR LOST DATA OR RECORDS) OF ANY KIND BASED ON, ARISING OUT OF, RELATING TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. To the extent a particular applicable jurisdiction to which the Agreement may be subject does not allow the exclusion or limitation of liability for consequential or incidental damages, Provider's liability shall be limited to the maximum extended permitted by law.
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OTHERWISE TO THE CONTRARY, IN NO EVENT SHALL Provider's CUMULATIVE LIABILITY WITH RESPECT ANY DISPUTE ARISING HEREUNDER OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THE AGREEMENT EXCEED THE AGGREGATE OF AMOUNTS ACTUALLY PAID BY CLIENT TO Provider UNDER THE APPLICABLE STATEMENT OF WORK.
For the avoidance of doubt, the Provider disclaimers and limitations of liability in this Article VI also apply for the benefit and protection of Provider's members, managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, and affiliates.
Client shall defend, indemnify, and hold harmless the Provider (and its members, managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, and affiliates) from and against any and all claims, suits, damages, losses, costs, and expenses (including expenses of investigation and reasonable attorneys' fees) that Provider (or any of its members, managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, or affiliates) incurs as a result of, arising from, based upon, or otherwise in connection with: (i) any intentional misconduct by Client (or any of its officers, employees, representatives, agents, subcontractors, assignees, or affiliates); (ii) a breach of this Agreement by Client; (iii) any claim, proceeding, or other action by a third party or a governmental authority involving a Product; (iv) any claim, proceeding, or other action by a third party or a governmental authority in connection with the Services (except to the extent of an intentional breach by Provider); or (vi) any breach of an obligation owed by Client (or any of its officers, employees, representatives, agents, subcontractors, assignees, or affiliates) to any third party.
Subject to Article VI and Section 7.1 above, Provider shall defend, indemnify, and hold harmless Client (and its directors/managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, and affiliates) from and against any and all claims, suits, damages, losses, costs, and expenses (including expenses of investigation and reasonable attorneys' fees) that Client (or any of its directors/managers, officers, employees, agents, representatives, subcontractors, vendors, service providers, or affiliates) incurs as a result of, arising from, based upon, or otherwise in connection with: (i) any intentional misconduct by Provider (or any of its officers, employees, representatives, agents, subcontractors, assignees, or affiliates); or (ii) a breach of this Agreement by Provider.
A Party entitled to indemnification under Section 7.1 or Section 7.2 above (as applicable, the "Indemnified Party") shall (A) give the other Party (as applicable, the "Indemnifying Party") prompt written notice of the relevant claim, (B) cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in the defense of such claim, and (C) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that materially affects the Indemnified Party's rights or interest without the Indemnified Party's prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. If the Indemnifying Party duly and diligently defends a claim, then the Indemnified Party shall have the right to participate in the defense, such participation at the expense of the Indemnified Party (except as to expenses in connection with participation required by law or with cooperation requested by the Indemnifying Party, which shall be at the Indemnifying Party's expense). If, however, the Indemnifying Party fails to duly and diligently defend or settle, as applicable, the claim, then the Indemnified Party may, upon written notice to the Indemnifying Party and at the Indemnifying Party's expense, undertake the defense and/or settlement of the claim.
The term of this MSA shall commence on its effective date and, unless earlier terminated as permitted herein, shall continue for a period of one (1) year (the "Initial Term"). Unless either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term, then effective upon the expiration of the Initial Term the term of this MSA shall renew for additional one-year terms (each, a "Renewal Term") until terminated as permitted herein or unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of such Renewal Term; provided that no expiration of this MSA on account of non-renewal shall become effective, and the term of the MSA shall be extended, until performance under the Statement of Work is concluded.
In the event that a material breach or material default by a Party occurs, then the non-defaulting Party shall provide written notice setting forth the details of the breach or default in reasonable detail (including, but not necessarily limited to, a description of the breach or default, a statement of the facts relating to the breach or default, the provisions of the Agreement that are in breach or default, and the action proposed to cure the breach or default). If the defaulting Party does not diligently commence curing the breach or remediating the default within thirty (30) days of delivery of notice, then the non-defaulting Party may terminate the Agreement (including all outstanding Statements of Work) immediately effective upon subsequent written notice to the other Party.
Client may terminate a Statement of Work without cause upon prior written notice to Provider of at least thirty (30) days, and Provider may elect to terminate a Statement of Work pursuant to Section 1.3 above; provided that in either case all deposits or other prepaid amounts under such Statement of Work shall be non-refundable and Client must pay Provider for: (i) all invoices and all fees, Qualified Purchase Reimbursements, charges, and expenses incurred through such date of termination; (ii) Upon Client written confirmation all costs Provider incurred or incurs having anticipated performing Services.
Either Party may terminate the Agreement by and upon giving the other Party written notice of termination if: (i) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (ii) the other Party makes a general assignment for the benefit of creditors; (iii) any proceedings are commenced against the other Party under any bankruptcy, insolvency, or debtor's relief law, and such proceedings have not been vacated or set aside within sixty (60) days from the date of commencement thereof; or (iv) any proceeding, plan, or other action for the bankruptcy, insolvency, dissolution, or liquidation of the other Party is filed, adopted, or commenced.
The defined terms and the rights and obligations set forth in the following sections of this MSA shall survive any termination or expiration of the Agreement: Articles IV through VII above, this Section 8.5, and Article IX below.
Any notices required or authorized to be given pursuant to the Agreement must be in writing and shall be sent to the other Party at its address set forth in the Statement of Work or to such other address as such Party may from time to time specify in writing, and shall be deemed given: (i) if delivered personally, then when actually delivered; (ii) if delivered by internationally recognized courier, then upon delivery as evidenced by ordinary course records of the courier; or (iii) if delivered by certified or registered postal mail, return receipt requested to an address within the United States, then five (5) days after deposit, postage pre-paid, with the United States Postal Service.
Any notice to Provider must be delivered to:
Acquiregy LLC
1138 N Brand Blvd Suite 200-241
Glendale, CA 91203
Any notice to Client must be sent to the address provided on a Statement of Work. If no such address is provided, then Client may be notified at any address of Client or any officer of Client.
A Party may update its notice address by delivering notice to the other Party in a manner consistent with this Section 9.1.
Provider shall not be liable for any delays or other nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war, insurrection, riot violence, or protest or disturbance, any law, order, or requirement of any governmental Provider or authority, or any act or omission of employees or agents of Client. In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of the Agreement by Provider and the project schedule, and any milestone and due dates shall be adjusted and extended accordingly, and also subject to Section 1.3 above.
The Parties are independent contractors, and the Agreement shall not be construed to create or evidence a partnership, joint venture, or franchise relationship between them. Neither Party shall have the authority to bind the other Party by or to any representation, warranty, promise, obligation, or agreement.
Provider shall have the option to subcontract to perform Services.
Except as to Influencers and except as to parties covered by indemnification in Article VII above, (i) nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person any rights or remedies under or by reason of the Agreement other than the Parties and their permitted assigns, and (ii) no third-party beneficiaries are expected or intended. Furthermore, except as set forth in Section 2.6 above, it is expressly hereby stated that Client is not an intended third-party beneficiary of any agreement between Provider and an Influencer.
Neither Party may assign the Agreement in whole or in part without the other Party's prior written consent except in the case of the sale or other transfer (whether direct or indirect, or by merger, operation of law, change of control, or otherwise) of all or substantially all of the assets or voting equity interests of a Party so long as the assignee agrees in writing to be bound by the terms of the Agreement. Any assignment contrary to this provision shall be void and of no effect. The terms and conditions of the Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the Parties.
No course of conduct shall constitute a waiver of any terms or conditions of the Agreement, unless such waiver is specified in writing by the waiving Party, and then only to the extent so specified. A waiver of any of the terms and conditions of the Agreement on one occasion shall not constitute a waiver of the other terms of the Agreement, or of such terms and conditions on any other occasion.
Each Party acknowledges that it is a sophisticated business with representation by or access to counsel and that this is a business-to-business contract. The language used in the Agreement shall be deemed to be the language chosen by the Parties to express their collective mutual intent, and no rule of strict construction shall be applied against either of them. Unless the context clearly suggests otherwise: (i) the singular includes the plural and the plural includes the singular; (ii) words shall include grammatically related forms; (iii) a reference to the masculine gender shall be deemed to be a reference to the feminine gender and the neuter form, and vice versa; (iv) the word "or" is not exclusive; (v) the words "include," "includes," and "including" are not limiting; and (vi) references to days mean calendar days. The titles, subtitles, and headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. In the event of conflicting terms between this MSA and the Statement of Work, the terms of the Statement of Work shall control.
Any provision set forth in the Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. As to any provision which is held to be unenforceable because of the scope or duration of such provision or the area covered thereby, the Parties agree to modify such provision, and that any court or arbitrator making such determination shall have the power to modify such provision, to reduce the scope or duration or area of such provision, or both, or to delete specific words or phrases here from ("blue-penciling"), and, in its modified, reduced, or blue-penciled form, such provision shall then be enforceable by Provider.
All issues and questions concerning the construction, validity, enforcement and interpretation of the Agreement shall be governed by, and construed in accordance with, the laws of the state of California without giving effect to any choice of law or conflict of law rules or provisions (whether of the state of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of California.
(a) In General. The Parties must resolve any dispute, controversy, or claim arising out of or relating to the Agreement, or the termination or alleged breach or invalidity hereof (each, a "Dispute"), pursuant to the provisions in this Section 9.11; provided, however, that the commencement of the Dispute resolution process set forth in this Section 9.11 shall not prohibit Provider from simultaneously seeking an injunction or similar equitable relief in accordance with Section 9.15 below.
(b) Informal. The Parties involved in a Dispute must first attempt in good faith to resolve the Dispute by informal consultation and negotiation. Any Dispute which is not resolved through this process after a period of five (5) business days from an initial written notice of attempting to resolve such Dispute by negotiation and consultation from a Party (or such shorter period designated by a Party due to time constraints relevant to the specific Dispute), shall be resolved as described hereinbelow.
(c) In-Person. If the Dispute is not resolved pursuant to Section 9.11(b) hereinabove, then any Party may provide written notice to the other Party or Parties to invoke additional Dispute resolution process and such Parties shall meet in person within ten (10) business days after receipt of a written notice to discuss the areas of disagreement and to negotiate in good faith regarding possible solutions.
(d) Mediation. If the Dispute is not resolved pursuant to Section 9.11(c) hereinabove, then the Dispute shall be submitted to non-binding mediation. Provider shall select the mediator, and the Parties shall engage in the mediation process in good faith. Each Party shall bear its or his or her own expenses to prepare for and attend mediation, except that the fees of the mediator shall be split evenly between the Parties.
(e) Arbitration. If the Dispute is not resolved pursuant to Section 9.11(d) hereinabove, then the Dispute shall be resolved by binding arbitration in accordance with the then-governing rules of the American Arbitration Association at a location within, unless otherwise agreed by the parties thereto, California.
(f) Litigation. No Party is restricted from instituting any litigation in a court of law with respect to any Dispute.
EACH PARTY IRREVOCABLY AGREES that any Dispute shall be conducted only on an individual basis and not in any class, consolidated or representative action.
EACH PARTY IRREVOCABLY AGREES THAT ANY DISPUTE OR DISAGREEMENT BETWEEN OR AMONG ANY OF THE PARTIES, EXCEPT AS PURSUANT TO AND SUBJECT TO SECTION 9.11 ABOVE AND SECTION 9.15 BELOW, AS TO THE INTERPRETATION OF ANY PROVISION OF, OR THE PERFORMANCE OF OBLIGATIONS UNDER, THE AGREEMENT SHALL BE COMMENCED AND PROSECUTED IN ITS ENTIRETY SOLELY IN THE STATE COURTS OF THE STATE OF CALIFORNIA OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CALIFORNIA. EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, SUCH COURTS. EACH PARTY HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE COURTS AS AFORESAID AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED FIRST-CLASS POSTAL MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN OR PURSUANT TO THE AGREEMENT, WITH SUCH SERVICE TO BECOME EFFECTIVE FIFTEEN (15) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF EITHER PARTY TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES, AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. THE FOREGOING SHALL NOT LIMIT THE RIGHTS OF ANY PARTY TO OBTAIN EXECUTION OF JUDGMENT OR ENFORCEMENT OF THE RESULTS OF ARBITRATION IN ANY OTHER JURISDICTION.
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY RELATING TO THIS AGREEMENT OR ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.14.
Parties acknowledges and agrees that any violation by it of the provisions of Article V will cause damage in a fashion or amount with may be irreparable and will be difficult to ascertain. Parties therefore agrees that in the event that it breaches, threatens to breach, or fails or refuses to perform any of its obligations under Article V, other party shall be entitled to, in addition to any remedies at law under this Agreement for damages or other equitable relief, specific performance of such covenant or agreement hereunder, including injunctive relief in any jurisdiction without the necessity of posting a bond.
In the event of a Dispute, the prevailing Party shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys' fees, incurred in connection with the arbitration or litigation of such Dispute, including any appeals therefrom; provided, however, that no Party may receive reimbursement unless it complied with the dispute resolution process set forth in Section 9.11 above. For purposes of this Section 9.16 the determination of which Party is to be considered the prevailing Party and the allocation of costs shall be decided by the court of competent jurisdiction or independent party (i.e., arbitrator) that resolves such dispute, claim, or litigation.
This MSA and the Statement of Work represent the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersedes any previous oral or written agreements or understandings regarding such subject matter. This MSA may be amended or modified only by a written instrument signed by a duly authorized representative of each Party. A Statement of Work may only be modified by a duly executed Change Order as contemplated by this MSA.
This MSA shall be deemed agreed when a Statement of Work is fully executed by both Parties. Statements of Work may be executed in counterparts, each of which if so executed shall be deemed an original and both of which together shall constitute one and the same instrument. Scanned images of signatures transmitted electronically (or other evidence of consent transmitted electronically) shall have the force and effect of original signatures.
THE PARTIES HERETO AGREE TO THIS MASTER SERVICES AGREEMENT BY VIRTUE OF ENTERING INTO A STATEMENT OF WORK.