THIS MASTER SERVICES AGREEMENT (the “Agreement”) governs services to be provided by Scrollmotion, Inc., a Delaware Corporation with an address at 1460 Broadway, New York, NY 10036 (“we,” and its derivatives). By executing a Statement of Work referencing this Agreement, you agree to the following terms and conditions. If you do not so agree, you may not access or use our software or services. “You” and its derivatives refers to the entity entering into this Agreement.
UPDATED: October 18, 2016
1. CERTAIN DEFINITIONS
1.1 “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either Party that (i) is marked or identified as “confidential” or with a similar designation, or (ii) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential.
1.2 “Deliverable” means any item that we create pursuant to the Services for which Specifications are provided in the applicable SOW.
1.3 “Intellectual Property Rights” means all intellectual and industrial property rights in any jurisdiction worldwide, including copyrights, patents, trademarks, trade names, trade secrets, mask work rights, moral and contract rights, and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.
1.4 “Party” means either you or us, depending on context; “Parties” means you and us.
1.5 “Services” means work we perform pursuant to an SOW.
1.6 “Specifications” means objective standards for the features and functions of Deliverables set forth in an SOW.
1.7 “Statement of Work” or “SOW” means a document contracting for specific Services referencing and governed by this Agreement.
1.8 “Your Content” means all text, pictures, graphics, sound, video and other content you provide to us in connection with the Services.
2.1 Statements of Work. Services will not be performed without an SOW. Each SOW will include, as applicable, (i) a detailed description of the Services to be performed, including Specifications for any Deliverable, (ii) the estimated schedule for the Services, (iii) each Party’s other obligations with respect to the Services, and (iv) the Charges for the Services. SOWs will be incorporated into the Agreement upon execution. If there is a conflict between the provisions of an SOW or this Agreement, the Agreement will control, unless the SOW references the specific Agreement provisions to be superseded.
2.2 Subcontractors. We may subcontract our obligations hereunder, provided that (i) subcontractors are bound to confidentiality terms materially similar to Section 8 hereof, and (ii) we are responsible for subcontractors to the same extent as if we had performed the subcontracted functions ourselves.
2.3 Your Content. You are solely responsible for Your Content as provided to us in connection with the Services. We expressly disclaim any liability arising from Your Content as provided to us.
2.4 Delays. A Party’s delay or failure to fulfill its obligations that prevents or delays the other Party’s performance will extend the schedule for completion of the affected Party’s obligations on a day-for-day basis (or longer if required by the nature of the delay or failure), provided that the affected Party makes commercially reasonable efforts to timely fulfill its obligations despite such failure or delay.
2.5 Acceptance. Unless otherwise set forth in a SOW, you will have fifteen (15) days from delivery (the “Acceptance Period”) to determine whether a Deliverable substantially conforms to its Specifications. If it does not do so, you will provide us with a rejection notice including sufficient detail to allow us to reproduce the non-conformities. We will promptly correct such non-conformities and re-submit the Deliverable to you as set forth in this Section 2. Deliverables will be deemed accepted if we do not receive a rejection notice by the end of the Acceptance Period.
2.6 Changes. You will inform us in writing of any change you want to make to a SOW (each, a “Change Request”). The Parties will cooperate in good faith to assess each Change Request, and we will notify you whether we accept or reject the Change Request within ten (10) days of its receipt. If the Parties agree to a change, we will provide you with a written description of the required revisions to the applicable SOW, including estimated Charges and schedules (the “Change Order”). The Change Order will be effective and incorporated into the SOW upon execution.
3. WORK PRODUCT
3.1 You own all right, title and interest in and to any designs, drawings, specifications, concepts, models, Deliverables or other items (collectively, the “Work Product”) we produce in connection with the Services. The Work Product is a “work made for hire,” and you will be deemed its author for all purposes and will own all Intellectual Property Rights in the Work Product. To the extent the Work Product is not automatically assigned to you hereunder, we will reasonably cooperate with you to take whatever other steps are required to effectuate such assignment.
3.2 In connection with the Services, we may use our products, tools or other Intellectual Property Rights (the “Scrollmotion Property”). We will retain all right, title and interest in and to the Scrollmotion Property. Subject to the terms and conditions of this Agreement, we hereby grant you a world-wide, fully paid, perpetual, irrevocable and non-exclusive license to use and modify any Scrollmotion Property that is incorporated into the Work Product.
4.1 Charges. You will pay the fees set forth in any SOW (the “Charges”).
4.2 Expenses. You will reimburse us for the actual cost of travel and other expenses incurred in connection with this Agreement in compliance with our expense policy.
4.3 Invoicing. Unless otherwise set forth in the applicable SOW, (i) all fixed fee projects will be invoiced fifty percent (50%) on execution and fifty percent (50%) upon completion, and (ii) all time and materials projects will be invoiced monthly in arrears, with a minimum deposit of $5,000 invoiced upon execution. Charges are payable in U.S. dollars and due thirty (30) days after receipt of invoice. We may suspend your Software access if undisputed amounts remain unpaid after the due date.
4.4 Taxes. The Charges do not include, and you will pay, all sales, use, excise, value-added and other taxes levied upon either Party related to this Agreement, except for taxes on our net income.
5. TERM AND TERMINATION
5.1 Term. This Agreement is valid from the Effective Date until all work described under SOWs is completed or the Agreement is terminated as set forth herein (the “Term”).
5.2 Termination for Cause. Either Party may terminate this Agreement or an SOW for a material breach that remains uncured thirty (30) days after the breaching Party’s receipt of written notice thereof.
5.3 Effect of Termination. Upon termination of this Agreement, (a) each Party will promptly destroy or return, at its expense, the other Party’s Confidential Information, provided that the Parties may retain limited copies of such information subject to Section 8 solely for archival purposes; and (b) you will pay all Charges accrued prior to the effective date of termination. Where relevant, this Section 5.3 will apply to SOW termination. Termination of an SOW will not affect other SOWs; termination of this Agreement will terminate all SOWs. Termination-related payments will be due within sixty (60) days of the date of termination.
5.4 Survival. Sections 3, 5.3, 7, 8, 9, and 10 will survive termination of this Agreement or an SOW.
6. WARRANTY AND DISCLAIMER
6.1 Warranty. Acceptance Items will conform to their Specifications for a period of thirty (30) days after acceptance. Our sole obligation and your entire remedy for a failure to comply with this warranty is for us to promptly correct such Acceptance Item so that it conforms to the Specifications at no cost to you.
6.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, THE SERVICES ARE PROVIDED ON AN “AS IS. WHERE IS” WITHOUT ANY WARRANTY OF ANY KIND. TO THE GREATEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL WARRANTIES NOT EXPRESSLY PROVIDED FOR HEREIN.
7.1 By Us
(a) We will defend, indemnify and hold you harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim that the Services or a Deliverable infringes such party’s Intellectual Property Rights (“Infringement Claims”).
(b) If an Infringement Claim is brought or threatened, we may, in our sole discretion, (i) secure the right for you to continue using the allegedly infringing item, or (ii) modify or replace the allegedly infringing item to make it non-infringing. If neither (i) nor (ii) is commercially reasonable in our sole judgment, you will, upon notice from us, cease use of the allegedly infringing item and receive an equitable adjustment of the related Charges.
7.2 By You. You will defend, indemnify, and hold us, our agents, officers and employees, harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim alleging that Your Content as provided to us infringes such party’s Intellectual Property Rights.
7.3 Procedures. The obligations in this Section 7 are contingent on the indemnified Party: (a) promptly notifying the indemnifying Party of any claim; (b) granting the indemnifying Party sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified Party without its consent); and (c) providing reasonable assistance to the indemnifying Party at such Party’s expense.
7.4 Sole Remedy. The remedies in this Section 7 are the indemnified Party’s sole remedy, and the indemnifying Party’s entire liability, with respect to any indemnifiable claim.
8. CONFIDENTIAL INFORMATION
8.1 Ownership. Each Party may have access to the other Party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing Party. This Agreement’s terms are Confidential Information of the Parties, but the existence of this Agreement is not.
8.2 Use. Each Party will: (a) only use Confidential Information to fulfill its obligations hereunder; (b) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this Section 8.2, and (c) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Subject to Section 5.3, each Party will promptly return or destroy the other Party’s Confidential Information upon termination or expiration of this Agreement. The obligations in this Section 8.2 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect for so long as the trade secret is maintained.
(a) Confidential Information does not include, and Section 8.2 does not apply to, information that is: (i) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (ii) rightfully communicated to the recipient by entities not bound to keep such information confidential, whether prior to or following disclosure, (iii) independently developed by recipient; or (iv) approved for unrestricted disclosure by the disclosing Party.
(b) A recipient may disclose the other Party’s Confidential Information only as required: (i) by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other Party of such requirement and cooperates with the other Party’s reasonable and lawful efforts to prevent or limit the scope of such disclosure, at the other Party's expense); or (ii) to establish its rights under this Agreement.
9.1 LIABILITY. NEITHER PARTY WILL BE LIABLE UNDER ANY THEORY OF DAMAGES FOR ANY LOST BUSINESS, LOST PROFITS, LOST SAVINGS, LOST REVENUE, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF A BREACH OF THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM LIABILITY FOR DAMAGES ARISING OUT OF A BREACH OF THIS AGREEMENT WILL BE THE FEES YOU PAID UNDER THE APPLICABLE SOW FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
9.2 EXCEPTIONS AND APPLICABILITY. SECTION 9.1 WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY. SECTION 9.1 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR PROVEN INEFFECTIVE.
10. GENERAL PROVISIONS
10.1 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except if there is a merger, consolidation or sale of all or substantially all of a Party’s stock or assets.
10.2 Entire Agreement; Amendment. This Agreement (a) is the Parties’ entire understanding regarding its subject matter, and (b) supersedes all other oral or written agreements of the Parties as to such subject matter. This Agreement may also be amended in a writing consented to by the Parties, which writing and consent may be via email. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement will have no force or effect.
10.3 Notices. A communication intended to have legal effect under this Agreement (a “Notice”) must be written and delivered to relevant Party’s address as set forth in the preamble by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused. Operational communications, including changing a Party’s notice address, may be delivered via email.
10.4 Independent Contractors. We are an independent contractor, and this Agreement does not create a joint venture, partnership, principal-agent or employment relationship between the Parties. Neither Party will have, or represent to a third party that it has, the authority to act for or bind the other Party.
10.5 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto.
10.6 Attribution. We may identify you as a client in standard marketing materials.
10.7 Severability. Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provisions.
10.8 Force Majeure. Neither Party will be liable for a failure to fulfill its obligations due to causes beyond its reasonable control that cannot be mitigated through the exercise of due care.
10.9 Governing Law and Venue. This Agreement, including its formation, will be governed by and interpreted according to the laws of the State of New York without regard to its conflicts of laws provisions that would require a different result. A cause of action relating to this Agreement may only be brought in the state or federal courts in New York County, New York.
10.10 Waiver. A Party’s waiver of a breach of this Agreement will not waive any other or subsequent breach.
10.11 Headings and Interpretation. Headings are for reference only and do not affect the Parties’ obligations. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holiday.
10.12 Non-Solicitation. During and for one (1) year after the Term, you will not induce or attempt to induce our employees or independent contractors to cease their relationships with us.