829 Studios Master Services Agreement
THIS AGREEMENT by and between 829 Studios, with its principal place of business at 300 Massachusetts Ave, Floor 3, Boston, MA 02115 (“829”), and your organization (“Client”) is effective as of the date Client enters into a Statement of Work with 829 (the “Effective Date”).
UPON EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, OR, BY OTHERWISE ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CLIENT” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE 829 SERVICES (OR ANY OTHER SERVICES, DELIVERABLES, OR PRODUCTS OFFERED BY 829) IN ANY MANNER.
Client desires 829 to provide certain marketing services, including professional, software, hosting, consulting or other related services (the “Services”) as described in one or more written Statements of Work (which are incorporated herein by reference) as may be agreed upon by the parties in accordance with the terms of this Agreement, and 829 desires to provide such Services. For purposes of this Agreement, the term “Deliverable” shall mean any item, software, product, documentation or other material provided by 829 to Client as required by a Statement of Work. Deliverables will be a combination, as appropriate, of Client Content, 829 Content, Third Party Content, and Custom Content, all as defined below. The terms and conditions of this Agreement shall apply to and govern all Services provided, and Deliverables developed, by 829. This Agreement does not obligate either party to enter into any Statements of Work.
In consideration of the foregoing Background (which is incorporated herein) and the mutual covenants and agreements contained herein, the parties hereto agree as follows:
- Definitions. The following terms, when used in this Agreement, shall have the following meanings:
- Agreement. “Agreement” shall mean this Master Services Agreement and all exhibits and Statements of Work referenced or incorporated herein.
- Custom Content. “Custom Content” means IP made, conceived, or developed by 829 after the Effective Date specifically for and on behalf of Client in creating the Deliverables provided under a Statement of Work, and paid for by Client. Custom Content does not include any of the following: (i) 829 Content; (ii) Client Content; and (iii) Third Party Content.
- Client Content. “Client Content” shall mean any IP provided by Client or its agents for incorporation into the Deliverables, including any data, images, programming, computer code, photographs, illustrations, graphics, audio clips, video clips, or text. Client shall deliver the Client Content to 829 in an electronic file format specified and accessible by 829 (e.g., .txt, .gif, .jpg) or as otherwise specified in the applicable Statements of Work. Client shall promptly deliver all Client Content to 829 as required by 829. 829 shall not be responsible for delays caused by Client’s failure to timely provide Client Content. Except as may otherwise be provided in a Statement of Work, Client hereby grants 829 a non-exclusive, royalty-free license to use the Client Content in the form provided by Client to provide the Services to Client. 829 shall not use the Client Content for any other purpose. All IP rights in the Client Content are and shall remain the sole and exclusive property of Client or its third party licensors. Client will be responsible for obtaining all rights, permissions, and authorizations to provide the Client Content to 829 for use as contemplated under this Agreement.
- 829 Content. “829 Content” shall mean IP possessed, acquired, made, conceived, or developed by 829 prior to the Effective Date or outside or independent of this engagement, or refined, modified, or improved on by 829 (either independently or in concert with Client but excluding Client’s Proprietary or Confidential Information) during the performance of this Agreement, including 829’s ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, processes, website products, including generally-applicable and independently-developed software and code (and related components), digital marketing campaigns, scripts, and procedures, and all improvements, modifications, and derivative works based thereon. Such list is not exclusive. All IP rights in the 829 Content are and shall remain the sole and exclusive property of 829. Except as may otherwise be provided in a Statement of Work, Client shall (i) only be entitled to the object code version of any 829 Content provided hereunder; (ii) only use the 829 Content in the form provided by 829 and solely as provided in this Agreement; (iii) not rent, sell, assign, lease, sublicense, or otherwise transfer the 829 Content; and (iv) not derive or attempt to derive the source code, source files, or structure of all or any portion of the 829 Content by reverse engineering, disassembly, decompilation, or any other means. Certain items of 829 Content may be provided to Client subject to 829’s standard license agreements for such items. In the event of a conflict between this Agreement and such licenses, if any, the terms of the licenses shall govern with respect to their subject matter.
- IP. “IP” shall mean all inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not protected under trade secret laws), and all other subject matter protected under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including all new or useful art, combinations, discoveries, formulae, manufacturing techniques, technical developments, artwork, software, programming, applets, scripts, and designs.
- Proprietary or Confidential Information. “Proprietary or Confidential Information” shall mean, with respect to a party hereto, all information or material which (i) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (ii) which is either (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or (B) known by the parties (or which should reasonably be known) to be considered confidential and proprietary. Proprietary or Confidential Information includes the 829 Content. Neither party shall have any obligation with respect to confidential information which: (i) is known or used by the receiving party prior to disclosure by the disclosing party; (ii) either before or after the date of the disclosure by the disclosing party is disclosed to the receiving party by a third party under no obligation of confidentiality to the disclosing party; (iii) either before or after the date of the disclosure to the receiving party becomes published or generally known to the public through no fault of the receiving party; (iv) is independently developed by the receiving party; (v) is required to be disclosed by a final order of a court of competent jurisdiction; or (vi) is otherwise required to be disclosed by applicable law following reasonable notice to the disclosing party.
- Third Party Content. “Third Party Content” shall mean any IP developed or owned by third parties that will be incorporated into the Deliverables. 829 shall not be responsible for securing any IP rights that may be owned or retained by third parties, unless the applicable Statement of Work expressly makes 829 responsible for securing such rights. In particular, 829 shall only be responsible for licensing those items of third party software as are specifically identified in a Statement of Work. Client’s use of any Third Party Content, shall be subject to the applicable license restrictions of such third parties. A statement or reference in a Statement of Work that 829 is responsible for obtaining third-party resources, including services, equipment, facilities, or IP rights, shall be subject to the availability of those resources.
- Generally. Client hereby retains 829 to provide, and 829 hereby agrees to provide, the Services specifically described in such Statements of Work as may be agreed to by the parties. The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Statements of Work. Each party shall use its reasonable efforts to accomplish the tasks assigned to it in the Statements of Work, and to cooperate with and support the other party’s performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other party. 829 shall be responsible for delivering and performing only those Services specifically identified in the Statements of Work.
- Staffing; Non-Solicitation. 829 shall have the right to perform the work with its own employees, or to use subcontractors, independent contractors, consultants or other third parties (“Contractors”) to perform the Services. 829 shall remain responsible to Client for work performed under this Agreement by 829’s Contractors. During the term of this Agreement and continuing through the first anniversary of the termination of this Agreement, neither party shall directly or indirectly solicit any personnel of the other party who has performed any material work for the hiring party under this Agreement, without the other party’s written consent. In the event of a violation of this provision, the hiring party’s sole and exclusive obligation, and the other party’s sole and exclusive remedy, shall be a one-time payment in the amount of one hundred percent (100%) of the employee’s base, yearly salary at the time of breach of this Section.
- Applicability of Services. The Services and Deliverables are not intended for and are not directed to use outside of the United States. Client acknowledges and agrees not to provide to 829 or to otherwise use the Services and Deliverables to process any information, data, or materials, including Client Content, which are subject to or governed by the EU General Data Protection Regulation 2016/679 and other EU or European data privacy and security laws. Client is solely responsible for determining the appropriateness and legality of the Services and Deliverables in respect to Client Content and other personal information or regulated data that it provides or uses in connection with this Agreement, the Services, or the Deliverables. Without limiting the generality of the foregoing, each party is responsible for compliance with, and shall comply with, all applicable federal, state and local laws, rules, and regulations when providing or using the Services or Deliverables, including Client’s responsibility for the creation and the appropriateness of any privacy notices or required terms or disclaimers on any Deliverables.
- Hosting Services. If, as specified on the applicable Statement of Work, 829 is to provide hosted or cloud based services and software to Client (“Hosted Services”), the terms and conditions set forth in the 829 Hosted Services Agreement (which is incorporated herein by reference) shall apply to and govern the performance and use of such services. For purposes of this Agreement, the Hosted Services shall be deemed included in the definition of “Services.”
- Statements of Work. The Statements of Work shall include, as appropriate, a description of tasks to be performed by each party, equipment and items (if any) to be delivered pertaining to the Deliverables, the equipment on which the Deliverables are to operate, any interfaces to be created, operating systems to be used, acceptance testing methodology, methods of delivery, a schedule of performance dates and milestones (including delivery dates for each Deliverable), and such payment terms as may be agreed to by the parties. All such dates for performance by 829 shall be deemed to be estimates only, and not guarantees, provided that 829 shall use commercially reasonable efforts to achieve such dates. The Statements of Work may include such additional terms and conditions as the parties may wish to include. All Statements of Work shall be presented by 829 to Client for acceptance and be executed by Client. In the event of a conflict between the terms of this Agreement and a Statement of Work or any other agreement, document, or material between the parties, the terms of the Statement of Work shall govern and control, except as explicitly provided herein.
- Development of Deliverables. Development of the Deliverables, if any, shall proceed according to the Statements of Work, provided that Client furnishes a sufficient number of trained and experienced personnel and delivers all necessary information and materials in a timely fashion, and if not, then 829’s obligations which are dependent on such personnel, information, equipment, timely and correct installation of Deliverables, or materials shall be extended to reflect Client’s or Client’s agents’ delay. 829 shall use commercially reasonable efforts to deliver the Deliverables to Client for approval as provided in Section 5 (Acceptance) in the manner and on the dates specified in the Statements of Work. Should any personnel of 829 be unable to perform scheduled Services because of illness, resignation, or other causes beyond 829’s reasonable control, 829 will attempt to replace such employee within a reasonable time, but 829 shall not be liable for delays resulting from factors beyond its control.
- Acceptance. Client shall have fifteen (15) days after delivery of a Deliverable to perform acceptance tests to confirm the Deliverable substantially conforms to the applicable Statement of Work (“Acceptance Criteria”). 829’s performance under the applicable Statement of Work shall be deemed accepted by Client, unless Client provides written notice to 829 before the end of the fifteen (15) day evaluation period that the performance does not substantially conform to the Acceptance Criteria. Such notice shall describe with particularity the nature of the nonconformance. If Client gives timely notice that 829’s performance is nonconforming, 829 shall make and submit to Client changes that may reasonably be required to correct the deficiencies described in the notice. Client shall have fifteen (15) days from receipt of the corrected Deliverable to confirm the Deliverable substantially conforms to the Acceptance Criteria. The corrected Deliverable shall be deemed accepted by Client, unless it provides written notice to 829 before the end of the fifteen (15) day reevaluation period that the Deliverable still does not conform to the Acceptance Criteria. In the event the corrected Deliverable is nonconforming, the foregoing process shall continue for the specific non-comforming Deliverable in fifteen (15) day intervals for the number rounds of review and revisions listed in the Statement of Work or until the Deliverable is accepted or the Agreement is terminated. Client shall not unreasonably withhold or delay acceptance. Upon acceptance of a Deliverable, Client shall promptly pay the designated balance due, if any, under the applicable Statement of Work. 829 shall not be responsible for non-conformances caused by Client or Client’s agents or failures resulting from specifications provided by Client.
Notwithstanding the foregoing or anything to the contrary in this Agreement, this provisions shall not apply to and Client shall be deemed to have accepted and approved of any Deliverable that Client has previously reviewed and approved of during the performance of the Services, including printed or posted versions of previously approved content in electronic or other formats.
- Change Orders. Client shall submit all change requests concerning the Services or Deliverables to 829 in writing. On receiving each change request, 829 will evaluate the request at its then current rates and charges and provide a written response. The written response will include a statement of the availability of 829’s personnel and resources, as well as the impact the proposed changes will have on the fee for the Services or Deliverables, delivery dates, milestones, or warranty provisions of this Agreement. If the response is acceptable to Client, 829 and Client shall amend the applicable Statement of Work to reflect the change request. Such amended Statement of Work shall be effective on execution by both parties.
- Fees, Expenses, and Payment.
- Fees. In consideration of the Services to be performed by 829, Client shall pay 829 the fees set forth in the Statements of Work. 829 shall have the right to immediately stop all work for Client if Client fails to timely pay 829 as required hereunder. Any such failure to pay shall constitute a material breach of this Agreement by Client. Notwithstanding anything in the Statement of Work to the contrary, 829 may modify fees under this Agreement from time to time by providing ten (10) days advanced written notice to Client. The modified fees will take effect upon ten (10) days after receipt of notice by Client, or upon such later date if otherwise set forth in the notice.
- Expenses. In addition to Fees set forth in Section 7.1, Client shall reimburse 829 for all expenses reasonably incurred in rendering services to Client pursuant to this Agreement (“Expenses”). Such Expenses shall include reasonable travel expenses (including transportation, lodging, and meals), plugins, applications and other software needed to operate the website, the cost of any courier services, photocopying, facsimile, and other expenses. Expenses shall normally be invoiced on a monthly basis. Travel expenses and other expenses, other than photocopying, facsimile, and long distance telephone calls, shall be approved in advance by Client before they are incurred. In addition, the cost to 829 of any services required to convert or input Client Content not set forth in the Statements of Work shall be charged to Client as an expense as set forth in this Section. Client shall also reimburse 829 for special or unusual expenses incurred at Client’s specific request. 829 shall not be responsible for delays caused in seeking and obtaining Client’s approval of expenses or non-performance based on Client’s denial of any expenses reasonably needed for 829’s performance and obligations.
- Taxes. Client shall pay or reimburse 829 for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against 829.
- Other Fees. Unless otherwise provided in this Agreement, or in a Statement of Work executed by the parties, payment for all other services rendered by 829 shall be at 829’s then current rates.
- Payment of Invoices. All invoices shall be paid by Client within thirty (30) days of receipt. Payments not made within that time will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more calendar days from the invoice date, 829 may, in its discretion, suspend or otherwise restrict your access to the Services and Deliverables until the invoice is paid in full.
- Hosted Services Required. For those Services and Deliverables that include website design under a Statement of Work, Client shall use the Hosted Services to host its website with 829 until all fees and Expenses under such Statement of Work for the Services and Deliverables described therein are paid in full. Upon Client’s payment of all fees and Expenses under the relevant Statement of Work, Client may continue to host its website with 829 for the then-current Hosted Services fees until either party provides notice of non-renewal of the Hosted Services at least thirty (30) days in advance, or Client may thereafter elect to transfer its website to its own third party hosting services provider at its sole cost and expense. Upon Client’s request and at 829’s sole option, 829 may provide reasonable transition Services to assist Client with transitioning its website to a third party hosting services provider, which Services shall be provided at 829’s then current rates.
- Term of Agreement. This Agreement shall be effective from the Effective Date and continue until completion of all pending Statements of Work contemplated by this Agreement or until termination as expressly provided for under this Agreement.
- Termination for Cause.
- The Agreement. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.
- Statement of Work. A Statement of Work may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided in the Statement of Work and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice; except that the cure period for any failure of Client to pay fees and charges due pursuant to the Statement of Work shall be fifteen (15) days from the date of receipt by Client of notice of such failure. Notwithstanding anything in the Statement of Work to the contrary, except for termination of this Agreement or the Statement of Work for cause in accordance with Section 9.1 (The Agreement) or Section 9.2 (Statement of Work), respectively: (i) no termination by Client of any Service(s) in the Statement of Work shall be effective until ninety (90) days following submission by Client of the online termination form available here: https://www.829llc.com/cancel/; and (ii) Client shall remain responsible for payment of all amounts that would have been payable during the remainder of the originally scheduled term of this Agreement or the Statement of Work, as applicable, for any Service(s) terminated by Client. For the avoidance of doubt, to terminate any Service(s) in the Statement of Work, Client must complete and submit the forgoing online termination form.
- Suspension of Services. Notwithstanding any other provision of this Agreement, 829 may, in its sole discretion, suspend Client’s access to the Services for any of the following reasons: (i) to prevent damages or risk to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect 829 from potential legal liability; or, (iv) in the event an invoice remains unpaid for more than forty-five (45) or more calendar days from the invoice date. 829 will use reasonable efforts to provide Client with notice prior to or promptly following any suspension of the Services. 829 will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on 829 to monitor use of the Services.
- Effect of Termination.
- Payment of Fees. Upon termination or expiration of this Agreement for any reason, 829 shall be paid at its then current hourly rates for time spent and materials expended through the date of termination on any uncompleted work and services, regardless of whether such work, services and materials have been previously invoiced. In addition, all amounts payable by Client to 829 of any kind under this Agreement are immediately payable and due no later than thirty (30) days after Client’s receipt of the final invoice. 829 shall provide Client with an invoice for the foregoing fees within sixty (60) days of the effective date of the termination.
- Return of Proprietary or Confidential Information. Within ten (10) days after the termination or expiration of this Agreement or a Statement of Work, each party shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in the party’s possession or, with the approval of the party, destroy all such Proprietary or Confidential Information. The foregoing return requirement shall not apply to Deliverables for which Client has paid 829 in full.
- Effect on Intellectual Property Rights. Except for a breach of Sections 11 (Intellectual Property Rights and License) or 20 (Confidentiality), the rights and licenses granted under Section 11 (Intellectual Property Rights and License), if any, shall continue in full force and effect in accordance with their terms notwithstanding any termination or expiration of this Agreement or a Statement of Work.
- Intellectual Property Rights and License.
- Client Ownership. Except as otherwise agreed to by the parties in a SOW, subject to the terms of this Agreement and upon payment by Client of all applicable fees hereunder, 829 hereby assigns and agrees to assign to Client all Custom Content included in or comprising the Deliverables originated and prepared for Client by 829 pursuant to this Agreement. Custom Content shall belong to Client, and shall constitute a work-made-for-hire under the Copyright Act. 829 agrees to execute, at Client’s request and expense, all documents and other instruments and do such further acts as are necessary to perfect, register, enforce, or otherwise effectuate such assignment of Custom Content. Client hereby grants to 829 a non-exclusive, worldwide, royalty free license to use the Custom Content to perform this Agreement.
- 829 Content. 829 retains all right, title, and interest in and to any and all 829 Content, whether or not delivered to or accessed by Client. Subject to the terms of this Agreement and upon payment by Client of all applicable fees hereunder, 829 shall grant Client a non-exclusive, perpetual license to use the object code versions of any 829 Content (subject to the restrictions in Section 1.4) solely to the extent such 829 Content is incorporated into, and necessary to use, the Deliverables for Client’s business purposes. Except as may otherwise be provided in a Statement of Work, Client shall not rent, sell, assign, lease, sublicense, or otherwise transfer the 829 Content without 829’s prior written consent. The license granted in this Section shall be subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 1.4 (829 Content). The parties agree that any breach of this Agreement by Client shall also be a breach of any license from 829 to Client. In the event, by operation of law or otherwise, Client is considered the owner of any IP rights in the 829 Content, excluding the limited license granted herein, Client hereby irrevocably and perpetually assigns, conveys, and transfers all such rights to 829. Client acknowledges and agrees that 829 may provide services and deliverables to third parties that may be the same or similar to the Services or Deliverables provided to Client under this Agreement. Nothing in this Agreement is intended to inhibit or prevent 829 from providing the same or similar Services or Deliverables to third parties.
- Feedback. Client may provide suggestions, comments or other feedback (collectively, “Feedback”) to 829 with respect to its products and services, including the Services. Feedback is voluntary. 829 may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client grants 829 an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with 829’s business, including the enhancement of the Services.
- Support and Maintenance. During the term of support set forth in the Statement of Work, 829 will provide Client with reasonable support and maintenance services as further set forth in the Statement of Work. For the avoidance of doubt, Client shall not be entitled to receive updates or new releases of the Deliverables that include new or different functionality for which 829 imposes an additional charge to its other customers. Such new or different functionality may be purchased by Client, in its discretion, at 829’s then current pricing. Unless otherwise agreed by the parties in a Statement of Work, 829 shall not be responsible for providing any maintenance and support for Third Party Content or providing any updates, enhancements, versions, or new releases of such Third Party Content. Maintenance and support for any Third Party Content or equipment may be available through the respective vendors/manufacturers of such content and equipment. Client shall be responsible for negotiating and entering into any such vendor maintenance agreements.
- Training. Unless otherwise agreed by the parties in a Statement of Work, 829 shall not be responsible for providing any training to Client or its personnel regarding the use and operation of the Deliverables.
- Limited Warranties. 829 warrants that for a period of thirty (30) days from acceptance under Section 5 (Acceptance), the Deliverables will operate in substantial conformance with the specifications in the applicable Statement of Work. All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, 829 shall, at its option, either correct the nonconformity or refund to Client the fees paid in connection with the relevant Deliverables. The warranty provided in this Section is solely for the benefit of Client and Client shall have no authority to extend such warranty to any third party. This warranty is contingent on the proper installation and use of the Deliverables on the equipment identified in the Statement of Work and proper performance of third party software and hardware. 829 shall not be liable for failures caused by third party hardware and software (including Client’s own systems), misuse of the Deliverables, or the negligence or willful misconduct of Client.
- Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 14 (LIMITED WARRANTIES), THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS PROVIDED IN SECTION 14 (LIMITED WARRANTIES), 829 DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF SERVICES AND DELIVERABLES IS AT CLIENT’S SOLE RISK. 829 DOES NOT WARRANT THAT THE SERVICES AND DELIVERABLES WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE DELIVERABLES ARE COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM, OR THAT THE OPERATION OF THE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE DELIVERABLES WILL BE CORRECTED. FURTHERMORE, 829 DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE DELIVERABLES IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, LEGALITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 829 OR 829’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. CLIENT ACKNOWLEDGES AND AGREES THAT 829 AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE OR (II) UNAUTHORIZED THIRD PARTIES (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CLIENT’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. 829 WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CLIENT IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
- Third Party Disclaimer. 829 MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH REGARD TO THE THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD PARTY ITEMS”). 829 EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NON-INFRINGEMENT WITH REGARD TO THE THIRD PARTY ITEMS. CLIENT SHOULD CONSULT THE RESPECTIVE SUPPLIERS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION. NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED AS A WARRANTY, EITHER EXPRESS OR IMPLIED, BY 829 THAT WOULD EXPAND IN ANY WAY A SUPPLIER/MANUFACTURER’S STANDARD END-USER WARRANTY.
- Limitation of Liability. IN NO EVENT SHALL 829 BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH 829’S PERFORMANCE UNDER THIS AGREEMENT OR UNDER ANY STATEMENT OF WORK, OR USE OF OR INABILITY TO USE THE DELIVERABLES, IF ANY, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF 829 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 829’S TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CLIENT FOR THE DELIVERABLE GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, 829 SHALL NOT BE LIABLE FOR DEFECTS IN OR FAILURES OF THIRD PARTY EQUIPMENT OR SOFTWARE, OR FOR ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING DEFAULTS BY, OR DEFECTS IN SERVICES RENDERED BY, THIRD PARTIES. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
- Indemnification Obligations.
- Client Indemnity. Client shall protect, defend and indemnify 829 and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and all related costs and expenses) incurred by 829 as a result of any claim, judgment, or adjudication against 829 related to or arising from 829’s use of the Client Content as permitted under this Agreement, including that Client Content infringes the IP of a third party. 829 shall: (i) give Client prompt written notice of a claim; and (ii) allow Client to control, and fully cooperate with Client in, the defense and all related negotiations.
- 829 Indemnity. 829 shall indemnify Client and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and all related costs and expenses) incurred by Client as a result of any claim, judgment, or adjudication against Client arising from a claim that Client’s use of the Custom Content or the 829 Content, as permitted under this Agreement, infringes the copyright and trade secret rights of a third party. To qualify for such defense and payment, Client must: (i) give 829 prompt written notice of a claim; and (ii) allow 829 to control, and fully cooperate with 829 in, the defense and all related negotiations. 829 shall have no obligation to indemnify Client under this Section to the extent the infringement arises from (i) the Client Content, (ii) specifications provided by Client or its agents; (iii) derivative works created by Client based on the Deliverables, (iv) use of the Deliverables in combination with non-829 approved third party products, including hardware and software, (v) modifications or maintenance of the Deliverables by a party other than 829, (vi) misuse of the Deliverables, and (vii) failure of Client to implement any improvement or updates to the Deliverables, if the infringement claim would have been avoided by the use of the improvement or updates. Client agrees that if its use of the Custom Content or the 829 Content becomes, or in 829’s opinion is likely to become, the subject of an infringement claim, Client shall permit 829 either to procure the right for Client to continue to use the Custom Content or the 829 Content or to replace or modify such items, with another item of comparable quality and performance capabilities to become non-infringing. If neither of such alternatives is reasonably possible, the infringing items shall be returned to 829 and 829’s sole liability to Client shall be to refund the amounts paid therefor by Client, pro-rated over three (3) years from the date of delivery to Client of each such item.
- Client Responsibilities. While 829 will use reasonable efforts to complete its work in accordance with the estimated schedules and charges set out in the Statements of Work, timing and cost requirements are subject to factors beyond 829’s control, including force majeure events and delays caused by third parties and Client. 829 shall not be responsible for any delays, cost overruns, or liability resulting from such factors. To facilitate prompt and efficient completion of the work, Client and its personnel shall cooperate fully with 829 and its personnel in all respects, including providing information as to Client requirements, providing access to the facilities and equipment/hardware on which the Deliverables are to be installed, and providing access to all necessary information regarding Client’s systems and facilities. Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Deliverables. Client shall comply with all applicable international and national laws that apply to its use of the Services and Deliverables, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by U.S. and other governments. Client represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth herein; and (b) any Client Content provided by Client to 829 for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including applicable policies and laws related to spamming, privacy, and consumer protection).
- In General. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party agrees to take all reasonable steps to ensure that Proprietary or Confidential Information of either party is not disclosed or distributed by its employees, agents or contractors in violation of the provisions of this Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. Each party acknowledges that any use or disclosure of the other party’s Proprietary or Confidential Information other than as specifically provided for in this Agreement may result in irreparable injury and damage to the non-using or non-disclosing party. Accordingly, each party hereby agrees that, in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-using or non-disclosing party may be entitled to equitable relief as granted by any appropriate judicial body. The obligations under this Section shall terminate three (3) years following expiration or termination of this Agreement (except with regard to trade secrets, which shall remain confidential for so long as the information remains protected as a trade secret).
- Retained Rights. Client may provide suggestions, comments or other feedback to 829 with respect to its products and services. Feedback is voluntary and 829 is not required to hold it in confidence. 829 shall not disclose the source of feedback without Client’s consent. Feedback may be used for any purpose without obligation of any kind. Each party is free to develop products provide services independently without the use of the other party’s Proprietary or Confidential Information. 829 is not obligated to restrict the future work assignments of its personnel who have had access to Client’s Confidential Information. 829 may use any technical information we derive from providing the Services relating to problem resolution, troubleshooting, product functionality enhancements and fixes, for our knowledge base. 829 agrees not to identify Client or disclose any of Client’s Confidential Information in any item in the knowledge base.
- Force Majeure. Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including default of subcontractors or suppliers, failures of third party software, default of third party vendors, acts of God or of the public enemy, U.S. or foreign governmental actions, labor shortages or strikes, communications or utility interruption or failure, fire, flood, epidemic, and freight embargoes. However, to be excused from delay or failure to perform, the party must act diligently to remedy the cause of the delay or failure.
- Independent Contractor Status. Client and 829 agree that 829 shall perform its duties under this Agreement as an independent contractor. Personnel employed or retained by 829 who perform duties related to this Agreement shall remain under the supervision, management, and control of 829. In order to assist it in carrying out its duties and responsibilities pursuant to this Agreement and any Statements of Work, 829 may subcontract with or otherwise engage the services of one or more third parties.
- Notices. Any written notice or demand required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice shall be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Paragraph.
- Governing Law; Mediation & Arbitration. This Agreement shall be construed according to, and the rights of the parties shall be governed by, the law of the Commonwealth of Massachusetts, without reference to its conflict of laws rules. No action, regardless of form, arising out of this Agreement, may be brought by either party more than three (3) years after the cause of action has arisen. Any dispute, controversy, or claim arising under, out of, in connection with or in relation to this Agreement, or the breach, termination, validity, or enforceability of any provision hereof, if not resolved informally through negotiation between the parties, will be submitted to non-binding mediation within sixty (60) days of the request for mediation by either party. If the parties are unable to agree on the mediator, each party shall designate its preferred mediator, and the mediator will be chosen by coin toss. If the parties are not able to reach a solution through the foregoing mediation, any dispute, controversy or claim relating to this Agreement or any breach or default in the performance of the terms and conditions thereof shall be settled by arbitration in Boston, Massachusetts, in accordance with the then-existing Commercial Arbitration Rules promulgated by the American Arbitration Association. The decision of the arbitrator shall be final and binding on the parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court. In any action relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred therein from the non-prevailing party, in addition to any other appropriate relief.
- Assignment. Client may not assign this Agreement without the prior written consent of Vendor.
- Entire Agreement; Amendments. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. This Agreement and the Statements of Work which it governs may be amended only by a written agreement signed by both parties. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they shall be severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement. Neither party shall by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement. Unless indicated otherwise, all references to “days” shall mean calendar days. The following provisions shall survive termination or expiration of this Agreement: Sections 7 (Fees, Expenses, Payment), 11 (Intellectual Property Rights and License), 17 (Limitation of Liability), 20 (Confidentiality), 24 (Governing Law; Arbitration), and 26 (Entire Agreement; Amendments). This Agreement may be executed in two (2) or more counterparts and all counterparts so executed shall for all purposes constitute one agreement, binding on all parties.
The parties have executed this Agreement by their duly authorized representatives as of the Effective Date.