This Master Service Agreement (this “Agreement”) is by and between Pixel Power LLC, a Marketing, Graphics, and Web Services Company (“Vendor”) and [customer name] (“Customer”). This Agreement includes any current or future statement of work on the form attached hereto as Attachment A and executed by each party (any “SoW”), and all such documents are incorporated by this reference.
Vendor provides professional services related to all creative services including but not limited to; marketing, social media, print design, graphic design, website hosting, and domain name servicing. The parties have agreed that Vendor will provide such professional services as the parties may agree, now and pursuant to future statements of work. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.
Vendor shall provide the services set forth in each SoW (“Professional Services”), and Customer shall provide any assistance and cooperation necessary or convenient to facilitate the Professional Services called for in an SoW. Vendor may employ subcontractors in the provision of Professional Services, but Vendor will be responsible and liable for such subcontractor’s acts and omissions related to this Agreement.
2.1. ACCEPTANCE & REJECTION
Deliverables created pursuant to Professional Services (“Deliverables”) will be considered accepted (“Acceptance”) (a) when Customer provides Vendor email notice of acceptance or (b) 14 days after delivery, if Customer has not first provided Vendor with email notice of rejection. Customer may reject a Deliverable only in the event that it materially deviates from its specifications and requirements listed in the applicable SoW and only via written notice or email setting forth the nature of such deviation. In the event of such rejection, Vendor shall correct the deviation and redeliver the Deliverable within 7 days. After redelivery pursuant to the previous sentence, the parties shall again follow the acceptance procedures set forth in this Subsection 2(a). This Subsection 2(a), in conjunction with Customer’s right to terminate for material breach where applicable, sets forth Customer’s only remedy and Vendor’s only liability for failure of Deliverables.
2.2. LICENSE TO DELIVERABLES
Effective upon Acceptance of each Deliverable, full payment, and subject to section (a) below vendor hereby assigns to Customer all vendor’s ownership, right, title, and interest in and to any and all copyrights in assets listed on the Statement of Work (“Deliverables”)
(a) The assignment in the preceding sentence does not include any component of the Work Product created before the Effective Date (any “Pre Existing Asset”).
(b) To the extent that this Section 2 “Deliverables” does not provide Customer with full ownership, right, title, and interest in and to the Work Product, including without limitation Pre Existing Assets, Vendor hereby grants Customer a perpetual, irrevocable, fully paid, royalty-free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, and use the Work Product, with the right to sublicense each and every such right; provided Customer may not: (i) reproduce or use Pre Existing Assets other than as components of the Work Product, (ii) distribute Pre Existing Assets, or (iii) sublicense any rights in Pre Existing Assets to third parties other than in support of Customer’s internal business operations.
2.3. FEES & REIMBURSEMENT
Customer shall pay Vendor the fees as set forth in each SoW except to the extent that the SoW specifically provides to the contrary. Customer shall reimburse the Vendor such expenses as Vendor reasonably incurs in provision of Professional Services. Vendor will not be required to refund fees under any circumstances.
“Confidential Information” refers to the following items one party to this Agreement (“Discloser”) discloses to the other (“Recipient”)
(a) any document Discloser marks “Confidential”
(b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing or email within 3 business days
(c) suppliers, Wholesalers, Reseller providers, or and other resource procured for the purpose of the Vendor’s rendered services and or deliverables
(d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.
Recipient shall not use Confidential Information for any purpose other than to facilitate the Professional Services (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 3; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
Recipient agrees that breach of this Article 3 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
3.3. TERMINATION & RETURN
With respect to each item of Confidential Information, the obligations of Section 3.1 above (Nondisclosure) will terminate 1 year after the date of disclosure; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
3.4. RETENTION OF RIGHTS
This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
3.5. EXCEPTION & IMMUNITY
Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
IMMUNITY An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
REPRESENTATIONS & WARRANTIES
4.1. FROM VENDOR
Vendor represents and warrants: (a) that all Professional Services will be performed in a professional and workmanlike manner; and (b) that the Deliverables will conform to their specifications set forth in the applicable SoW for a period of 30 days following Acceptance (as defined in Subsection 1.2(a) above). In the event of a breach of either warranty in this Section 4.1, Vendor, at its own expense, shall promptly re-perform the Professional Services or repair and redeliver the Deliverable in question. The preceding sentence, in conjunction with Customer’s right to terminate this Agreement for breach where applicable, states Customer’s sole remedy and Vendor’s entire liability for breach of the warranty in this Section 4.1.
4.2. FROM EACH PARTY
Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
4.3. WARRANTY DISCLAIMERS
EXCEPT AS SET FORTH ABOVE IN THIS ARTICLE 4, VENDOR PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE DELIVERABLES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (B) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE DELIVERABLES WILL BE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY WILLFUL OR INTENTIONAL BREACH OF THIS AGREEMENT, IN NO EVENT SHALL ANY PARTY OR ITS AFFILIATES LIABILITY TO ANY OTHER PARTY OR ITS AFFILIATES EXCEED, IN THE AGGREGATE, FOR ANY AND ALL CLAIMS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, AN AMOUNT EQUAL TO ONE HUNDRED FIFTY PERCENT (150%) OF THE TOTAL PAYMENT PROCESSING FEES PAYABLE BY THE CUSTOMER TO THE VENDOR FOR SERVICES PROVIDED IN THE FOUR (4) COMPLETE CALENDAR QUARTERS PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM UPON WHICH LIABILITY IS BASED.
5.1. EXCLUSION OF CONSEQUENTIAL DAMAGES
IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
5.2. CLARIFICATIONS & DISCLAIMERS
THE LIABILITIES LIMITED BY THIS ARTICLE 5 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
TERM & TERMINATION
TERM The term of this Agreement will commence on the Effective Date and continue for the period set forth in any outstanding SoW.
TERMINATION FOR CAUSE Either party may terminate this Agreement for the other’s material breach by written or email notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
TERMINATION FOR CONVENIENCE Customer may terminate this Agreement for convenience upon 30 days’ advance written notice. On the date of such termination, Customer shall pay Vendor the early termination fee set forth in the SoW or, if none, 50% of the fees for Professional Services not yet performed.
TERMINATION FOR CUSTOMER’S FAILURE TO COOPERATE Customer’s failure to provide information, documents, images, or anything required to complete the work outlined in the SoW, within 30 days of vendor’s written request, will authorize vendor to terminate this agreement pursuant to section 6 Term & Termination. The termination right set forth in the preceding sentence does not limit any right of vendor to terminate this agreement for breach or restrict the definition of “material breach”.
SURVIVAL The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 1.2(c) (Restrictions on Deliverables Rights), 3 (Confidential Information), 4.3 (Warranty Disclaimers), 5 (Limitation of Liability), and 7.2 (Feedback); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
INDEPENDENT CONTRACTORS The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor is or will be considered an employee of Customer.
FEEDBACK Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or any User provides to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 3 above, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
NOTICES pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing or email. Such notices will be deemed received at such addresses upon the earlier of (i) actual receipt or (ii) delivery in person, by fax with written confirmation of receipt, by certified mail return receipt requested, or email delivery confirmation.
For Vendor Email Address: email@example.com
For Vendor Mailing Address: 126 Woodstock Dr., Avon Lake, OH 44012
For Customer Email Address: [Provided upon sign-up]
For Customer Mailing Address: [Provided upon sign-up]
FORCE MAJEURE No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
ASSIGNMENT & SUCCESSORS Vendor may not assign this Agreement or any of its rights or obligations hereunder without Customer’s express written consent. Except to the extent forbidden in this Section 7.5, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
SEVERABILITY To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
NO WAIVER Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
CHOICE OF LAW & JURISDICTION This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Ohio, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Lorain County, Ohio. This Section 7.8 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
CONFLICTS In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; and (2) any SoW, with more recent SoW’s taking precedence over later ones.
CONSTRUCTION The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
ENTIRE AGREEMENT This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
EXECUTION IN COUNTERPARTS This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
AMENDMENT This Agreement may not be amended except through a written agreement by authorized representatives of each party.
IN WITNESS THEREOF, the parties have executed this Agreement as of the Effective Date.