This Master Service Agreement (“Agreement”) is entered into between Retencity, located in Port Angeles, WA 98362, and the Client identified in the Proposal, as defined below. Retencity and Client are each a “Party” and together, the “Parties” to the Agreement. Subject to Client’s payment of the applicable Project Fees as set forth in the Proposal and continuous compliance with the Agreement, Retencity will provide the Services set forth in the applicable Proposal or quote subject to the Agreement. The Agreement between the Parties consists of the following: (a) This Agreement; and (b) The initial sales quotation and proposal for Services (“Proposal”) (collectively, the “Terms and Conditions”). The Terms and Conditions, including its exhibits, constitutes the entire and final agreement between the Parties and supersede all express or implied, prior and contemporaneous agreements, negotiations, communications and understandings, whether in written or oral form. The Parties agree as follows:
Retencity shall perform all services (“Services”) and provide all Work Product and Custom Deliverables (Work Product and Custom Deliverables are defined below and collectively are, “Deliverables”) set forth in the applicable initial Proposal and/or the applicable Project Estimate (defined below). Retencity shall use commercially reasonable efforts to perform all Services and provide all Deliverables to Client by the applicable Project End Date set forth in the Proposal. Retencity shall notify Client where additional fees are required to complete the Services and Deliverables set forth in the applicable Proposal and shall provide Client with a quote for such additional Services and Deliverables (“Project Estimate”). Any such Additional Fees for additional Services and Deliverables shall be effective only upon the written approval of the Project Estimate by the Client. Retencity may provide Client with a Project Estimate for additional Services and/or Deliverables by issuing Client an additional Proposal and Project Estimate (collectively, the “New Project Proposal”). Client may accept the New Project Proposal by executing the New Project Proposal or by requesting that Retencity begin performance of the Services set forth in the New Project Proposal in writing (including but not limited to email). Notwithstanding any term or condition to the contrary, all New Project Proposals shall be subject to the Terms and Conditions of this Agreement. Retencity shall perform all Services hereunder on a non-exclusive basis and as an independent contractor to Client.
Client shall pay Retencity the applicable Project Fees in accordance with the applicable payment schedule set forth in the Proposal. Where applicable, Retencity shall invoice Client for Additional Fees and provide Client with an itemized and detailed account of the additional hours of Services once actually performed by Retencity. Retencity may invoice Client for all expenses related to performance of the Services that are set forth in the relevant Proposal, Project Estimate, or as otherwise previously agreed to by Client in writing. Except for Retencity's performance of media buys for Client, Client shall pay all invoices within net thirty (30) days of receipt of the applicable invoice by check or wire transfer. Client shall pay all invoices for media purchases by Retencity for Client within net fifteen (15) days of receipt of the applicable invoice by check or wire transfer. All Fees set forth in the Proposal or Project Estimate, as applicable, are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges (collectively, “Taxes”) of any kind imposed by any governmental authorities on such amounts. In the event that Client has not paid an applicable invoice within net sixty (60) days of receipt, Retencity may suspend or terminate the Services and/or Hosting Services, and Client’s account access will not be restored until payment has been received in full. In addition, Retencity may not issue additional Proposals or Project Estimates for additional Services or Hosting Services if Client has not remitted payment for applicable invoices by their respective due dates, if any. Client shall be responsible to pay all such Taxes related to the performance of Services hereunder and Retencity may invoice Client for such Taxes. For any payment that is not paid by Client by its applicable due date, Client will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Client shall select a representative to be the primary point of contact (“Client Contact”) with Retencity, as identified in the Proposal. Client Contact shall promptly respond to all information requests and inquiries from Retencity.
a. Website Development. If the Services in the Proposal are for website development the following terms apply. “Work Product” means all HTML files, Java files, and website-related graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other website-related Deliverable (excluding logos) provided to or prepared for Client by Retencity in accordance with these Terms and Conditions. Subject to Client’s full payment of the applicable fees for Services and Deliverables, Retencity grants Client a fully-paid, worldwide, irrevocable (except in the event of a breach of these Terms and Conditions by Client), non-exclusive license without the right to sublicense, to use and publish the Work Product solely for the purpose of operating Client’s commercial website.
b. Pre-Existing Materials. A Party’s “Pre-existing Materials” shall mean the documents and materials of the Party, including but not limited to any data, know-how, methodologies, software, trademarks, service marks, logos, inventions, improvements, developments, concepts, content, and other proprietary materials owned by a Party or in which the Party has an interest, in each case developed or acquired by the Party prior to the Effective Date of this Agreement. Client hereby grants Retencity a limited, non-exclusive, revocable, royalty-free license to modify, create derivative works from, publish, and otherwise use Client’s Pre-Existing Materials as necessary to perform the Services and provide the Deliverables set forth in these Terms and Conditions. Retencity's license to Client’s Pre-Existing Materials shall terminate upon the termination of these Terms and Conditions and Client represents and warrants that as of the Effective Date, Client possesses all right, title, interest, and ownership to the Pre-Existing Materials. Subject to Client’s full payment of the applicable fees for Services and Deliverables, Retencity grants Client a worldwide, irrevocable (except in the event of breach of these Terms and Conditions by Client), fully-paid, non-exclusive and perpetual license to use Retencity's Pre-Existing Materials that Retencity has made a part of the Deliverable or Services, solely for the purpose of using the Website. All Pre-Existing Materials of each Party remains the sole and exclusive property of the respective Party or the Party’s licensors.
c. Custom Deliverables. “Custom Deliverables” means all final logos developed by Retencity for Client and printed marketing materials and merchandise that are prepared for Client by Retencity in accordance with these Terms and Conditions. Subject to Client’s payment of the applicable fees, Retencity acknowledges and agrees that such Custom Deliverables, as applicable, are a works made for hire as defined in 17 U.S.C. §101 and Client is the sole and exclusive owner of all right, title, and interest to the Custom Deliverables. Upon the reasonable request of Client and at Client’s sole expense, Retencity shall take such further commercially reasonable actions to perfect the assignment of the Custom Deliverables to Client, including but not limited to execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights to any Custom Deliverable.
d. Restrictions. Except as expressly authorized in these Terms and Condition, Client will not copy, modify, distribute, transfer by any means, display, sublicense, rent, reverse engineer, decompile, or disassemble Retencity's Pre-existing Materials, Work Product, or any Deliverable. All rights not specifically granted in this Section 3 (Proprietary Rights) are reserved by Retencity.
e. Press Releases. Client acknowledges and agrees that Retencity may issue customer lists, social media entries, press releases, external advertisings, marketing materials, or promotion materials (collectively, “Press Releases”) that identify Client as a customer of Retencity. Client grants Retencity a perpetual, irrevocable, royalty-free, worldwide, license to use Client’s Pre-existing Materials including but not limited to Client’s trademarks and logos on Retencity's Press Releases.
f. Confidentiality Obligation. “Confidential Information” means any information that the disclosing party (“Discloser”) discloses in written or oral form, that is: (a) marked as proprietary or confidential; or (b) by its form, nature, content, or mode of transmission would to a reasonable party (“Recipient”) be deemed confidential or proprietary including but not limited to Retencity's counseling and advice. A Discloser’s Confidential Information includes, but is not limited to, its Pre-Existing Materials. Confidential Information excludes information that is: (1) generally known or available to the public through no act or omission of the Recipient; (2) rightfully known or acquired by Recipient without restrictions as to use or disclosure prior to receiving such information from Discloser; (3) rightfully disclosed to Recipient by a third party having proper possession of such information and without any restrictions as to use and disclosure; (4) independently developed by Recipient without use of Discloser’s Confidential Information; or (5) information which the Recipient has been authorized in writing by Discloser to disclose without restriction including but not limited to and Deliverables that includes either Party’s Pre-Existing Materials. During the term of these Terms and Conditions and for a period of three (3) years following expiration or termination of these Terms and Conditions, the Recipient will not disclose, discuss, transmit, or publish any of Discloser’s Confidential Information except as necessary for the performance of its obligations under these Terms and Conditions or as expressly authorized in writing by the Discloser. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information as specifically set forth in Section 3(d) of these Terms and Conditions and in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that Recipient shall give Discloser prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of Discloser to obtain a protective order.
a. Client represents and warrants that (a) Client owns all right, title, and interest to Client’s Pre-existing Materials; and (b) Retencity's use of Client’s Pre-existing materials to perform the Services for Client or provide the Deliverables will not violate, infringe, or misappropriate the intellectual property right of any third party or any contract or obligation with any third-party.
b. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, RETENCITY MAKES NO OTHER REPRESENTATION AND WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR SUITABILITY. EXCEPT AS SET FORTH IN THIS SECTION 4, ALL SERVICES AND DELIVERABLES (INCLUDING WORK PRODUCT AND CUSTOM DELIVERABLES) ARE PROVIDED ‘AS IS’ AND CONSULTANT DOES NOT WARRANT THAT THE SERVICE OR DELIVERABLES WILL BE ERROR OR BUG FREE, PRODUCE ANY DESIRE RESULTS, OUTCOMES, OR OTHERWISE MEET CLIENT’S SPECIFIC REQUIREMENTS.
Client shall defend and indemnify Retencity from any third party claim, suit, action or proceeding (“Claim”) arising out of any Claim that alleges: (a) Retencity's use of Client’s Pre-existing Materials infringes or misappropriates the intellectual property right of any third party; and/or (b) Client’s conduct, content, materials, and/ or website violates any third party right, contract, or policy. Retencity shall promptly notify the Client in writing of any Claim and cooperate with the Client at the Client’s sole cost and expense. The Client shall immediately take control of the defense and investigation of the Claim and shall employ counsel of its choice to handle and defend the Claim, at the Client’s sole cost and expense. The Client shall not settle any Claim in a manner that would adversely affect the rights of Retencity without Retencity's prior written consent.
EXCEPT FOR EITHER PARTY’S OBLIGATIONS UNDER SECTION 3(F) (CONFIDENTIALITY) AND CLIENT’S OBLIGATIONS UNDER SECTION 5 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE COSTS OF COVER, LOSS OF PROFIT, LOST FILES, LOST MATERIALS, LOST DATA, USE, SAVINGS, OR REVENUE, OR THE CLAIMS OF THIRD PARTIES, WHETHER BASED ON A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. WITHOUT LIMITING THE FOREGOING, EACH PARTY’S TOTAL LIABILITY (EXCEPT FOR EITHER PARTY’S OBLIGATIONS UNDER SECTION 3(F) AND CLIENT’S OBLIGATIONS UNDER SECTION 5) TO THE OTHER PARTY UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE TOTAL AMOUNT OF CLIENT’S FEES PAID OR PAYABLE UNDER THE APPLICABLE PROPOSAL GIVING RISE TO SUCH LIABILITY.
These Terms and Conditions shall commence on the Effective Date and shall continue for a six (6) month period (“Term”) unless terminated sooner pursuant to this Section 7 (Term and Termination) of these Terms and Conditions. These Terms and Conditions shall automatically renew for successive one (1) month periods upon expiration of the Term unless either Party provides written notice of its desire for non-renewal thirty (30) days prior to the expiration of the Term (“Term” shall reference the initial Term and renewal Term[s], if any). Either Party may terminate these Terms and Conditions for cause upon written notice to the breaching Party, if: (a) the breaching Party has materially breached these Terms and Conditions; (b) the non-breaching Party has provided written notice to the breaching Party of the breach; and (c) the breaching Party does not cure such breach within fifteen (15) days after receipt of the notice of breach. Notwithstanding the foregoing, upon Client’s failure to timely remit any fee by the applicable due date, Retencity may suspend performance of the Services or provision of the Deliverables until the applicable fee has been received in full. Upon termination or expiration of these Terms and Conditions: (i) each Party shall return the other Party’s Confidential Information and Pre-Existing Materials (except as may be incorporated into a Deliverable) and certify in writing to the other Party that it has complied with this Section 7; (ii) Consultant shall cease performing Services on the effective date of termination or expiration; and (iii) Client shall be entitled to any refund, payout of credits, or other damages of any kind due to the termination. The obligations of the Parties with respect to Section 2 (Payment; Client Obligations), Section 3 (Proprietary Rights), Section 5 (Indemnification), Section 6 (Limitation of Liability), and Section 9 (Remedies), and Section 8 (General Terms) shall survive termination or expiration of these Terms and Conditions.
Notices under these Terms and Conditions may be sent in via overnight carrier to the Party’s address listed above or via email to Retencity or to Client, at Client Contact’s email set forth in the Proposal. Notice via overnight carrier shall be deemed delivered one day after shipment and email notice shall be deemed delivered upon sending to the correct email address without notification of email bounce or like error. The Terms and Conditions may be executed in counterparts and/or using electronic signature, and each counterpart shall be deemed an original and together, constitute the agreement. Retencity shall not be liable to Client, nor be deemed to be in breach of these Terms and Conditions for any failure or delay in performing Services or providing Deliverables, to the extent that such failure or delay is the result of acts beyond Retencity's reasonable control, including but not limited to: Client’s failure to timely respond to requests from Retencity, acts of God, floor, fire, explosion, war, invasion, riot, civil unrest, embargoes, or national or regional emergency (“Force Majeure Event”). If Retencity's performance under these Terms and Conditions is affected by a Force Majeure Event, Retencity shall provide timely notice to Client stating the expected period of time the occurrence is expected to continue and Retencity shall use reasonable commercial efforts to minimize the effects of such Force Majeure Event.
These Terms and Conditions may be amended only by a written agreement signed by both Parties that references these Terms and Conditions. Neither party shall assign or transfer any rights or obligations under these Terms and Conditions without the prior written consent of the Party, and any unconsented assignment or transfer shall be null and void. Any term of these Terms and Conditions that is found to be unenforceable or illegal may be amended to render the term enforceable to the maximum extent permitted by law and legality, validity, or enforceability of the remaining terms of these Terms and Conditions shall not be affected. These Terms and Conditions shall be governed by the laws of the State of Texas (without reference to conflict of law principles) and the Parties irrevocably consent to the exclusive personal jurisdiction of the state and federal courts located in Travis County, Texas for any matter arising out of or related to these Terms and Conditions. The Terms and Conditions may be executed in counterparts and/or using electronic signature, and each counterpart shall be deemed an original and together, constitute the agreement.
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