Imavex Master Service Agreement
Terms and Conditions
A. Imavex is in the business of providing Website Design, Website Development, Website Hosting, and Website Support and Maintenance. (the “Services”).
B. User desires to engage the Services of Imavex in connection with the terms and conditions provided herein.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as set forth herein and in the Exhibits attached hereto and such other addenda, attachments and amendments executed by the parties:
Section 1. DEFINITIONS.
a) “Company” means the provider of the services and the subsidiaries and affiliates, thereof.
b) “User” or “Customer” means an entity that has the legal authority to accept the terms and conditions of this Agreement and that such acceptance shall be binding on the User.
c) “Affiliate” means, with respect to either party hereto, any entity, whether incorporated or not, that controls, is controlled by, or under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
d) “Services” means website design, website development, video production including the videos produced, content management functionalities that are built into the Software, the provision of electronic access to Company’s video/media streaming software over a computer network and related technical support services provided by Company.
e) “Software” means the code, in HTML or any other format of programming, all updates and enhancements, new releases thereof (and all ideas embodied therein or derived or derivable there from, and all documentation thereof, together with all related instructions, manuals, materials, forms and other documentation) that Company provides from time to time in connection with the Services, along with any updates thereto provided by Company from time to time.
f) “Content” means all videos, photos, audio, information and other materials (including Customer’s products and related information) provided by Customer, its affiliates, agents or other third parties on its behalf to Company or through the Software or in connection with the Services.
g) “Confidential Information” means (i) business or technical information of either party, including, without limitation, information relating to a party’s product plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development, know-how, or the pricing information available to its customers; and (ii) any information designated “confidential” or “proprietary”; (ii) software and (iii) Transaction Data (iv) the terms and conditions of this Agreement and any communication.
Section 2: Signers. The person signing below represents and warrants that:
(a) S/he is 18 years of age or older;
(b) All information s/he has provided to is true and correct in all respects;
(c) S/he will provide any changes to information previously supplied;
(d) S/he further represents and warrants that s/he has the legal authority to accept the terms and conditions of this Agreement and that such acceptance will be binding; and
(e) Is engaged in a lawful business that includes the sale of products and/or services and is duly licensed to conduct such business under the laws of all jurisdictions in which they conducts business.
Section 3. Company is Independent Contractor.
Company shall perform its obligations under this Agreement solely as an independent contractor and shall not serve as or be deemed an employee of User under any circumstances. Nothing contained in this Agreement shall be construed to place the parties in a relationship of partners, joint ventures, employer/employee or principal/agent. Any employees, agents or subcontractors of Company shall not be considered employees of User for any purpose whatsoever.
Section 4. PRICING, Billing and Payment.
The Software and Services will be provided, by Company to User in exchange for the Fees based on the prices and percentages set forth on Exhibit A. Company will bill User 30 days in advance for estimated services and fees to be rendered and User agrees to pay these charges within 30 days. Billing adjustments will be made monthly for differences between estimated charges previously billed and charges actually incurred. Company shall have the right to require reasonable assurance of the availability of User’s funds in advance of undertaking commitments on User’s behalf. If payment is not received on a timely basis, services will be suspended and Company will have the right to assess a finance charge up to 1.5 percent per month, or the highest rate allowed by applicable law, on the unpaid balance. Company may suspend software licenses and Services without notice if payments are late. Monthly payments begin at the turn-up (go live) date.
Section 5. TAXES.
User is solely responsible for calculation, payment and resolution of any and all taxes and duties (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes, customs charges or fees, and duties) resulting from User’s acceptance of the Software license and Services granted hereunder, use of the Software, excluding, however, any taxes payable by Imavex as a result of Imavex’s income earned hereunder. Unless User is obligated to remit such taxes to the appropriate authorities, User shall pay any such taxes as they fall due to Imavex for remittance to the appropriate authority.
Section 6. Company not Responsible for Defaults of Others.
Company will use reasonable efforts to guard against any loss to User through failure of third parties to perform in accordance with their commitments; provided, however, that Company shall not share User’s information with third parties absent a confidentiality agreement. So long as Company has complied with all terms of the Confidentiality Agreement between Company and User and obtained a confidentiality agreement with third parties, Company shall not be liable to User for loss, damage, destruction, or unauthorized use such third parties of User’s property.
Section 7. Term of Agreement; Termination.
The term of this Agreement shall begin on the signed Date defined in Exhibit A and shall continue for the total months set forth thereon after the start date of the Campaign and/or Go Live Date of the Software. After the initial term of the Agreement, the Agreement shall be renewed for additional month-to-month periods, unless Company receives a 30 day advance written notice by User to terminate this Agreement. Subject to Section 8, this Agreement may be terminated by Company and User at any time. Subject to Section 8, this Agreement may be terminated by the User after the first six (6) months (180 Days) after the Turn-Up (Go Live) Date (i) with a 30-day advance written notice of termination or (ii) immediately upon written notice in the event the other party: (A) terminates or suspends its business; (B) becomes subject to any bankruptcy or insolvency proceeding under federal or state law; or (C) becomes insolvent or subject to direct control of a trustee, receiver, or similar authority. Termination of the Agreement prior to fulfilling the first six (6) months (180 Days) of the Agreement will result in an early termination fee of $500 in addition to the final payment.
Section 8. Rights on Termination.
All services performed, materials prepared and costs incurred by Company prior to termination of this Agreement shall be billed to User as provided in Section 4, except that final bills shall be rendered by Company within forty-five (45) days after termination, and shall be due and payable by User within forty-five (45) days of receipt of such final bill. If final payment is not received by Company within four (4) months (120 days) after termination of this Agreement notification, User will be turned over to collections company for late fees and final payment.
Upon termination of this Agreement, User shall assume any and all liability for an pre-approved agreements and/or obligations made by the Company on User’s behalf before the termination date to the extent such agreements or obligations cannot be cancelled on or before the termination date of the Agreement. With Pre Authorization any reservation, contract or arrangement made by Company for User prior to the termination date (and that is disclosed to and approved by User) that is not cancelable and therefore continues beyond the termination date will be carried to completion by Company and paid for by User in accordance with this Agreement, unless User directs Company to transfer such reservation, contract, or arrangement to another entity and User releases and indemnifies Company, in which event Company will attempt to make such transfer, subject to obtaining any necessary consent of third parties. Company will be entitled to its commissions, fees, and payments for services performed prior to accomplishing the transfer. During and after the term of this Agreement, User hereby agrees to indemnify and hold Company, its employees and representatives harmless from and against any and all claims, demands, regulatory proceedings, and all damages, costs (including settlement costs), and expenses (including attorneys’ fees) of any kind whatsoever, arising from or relating to any activities undertaken by Company on User’s behalf or as a result of User’s products or services.
Section 9. Indemnification.
Each of the parties agrees to indemnify, hold harmless, and defend the other party, its affiliates and their respective officers, directors, shareholders, employees, and agents against any third-party claim or action brought against such other party or any of its affiliates, and its respective officers, directors, shareholders, employees, and agents, relating to or arising out of (a) any action for intellectual property infringement relating to acts and/or materials supplied or approved by the other party, (b) any claim of fraudulent, misleading or deceptive advertising based upon advertising materials or content supplied or approved by the other party with respect to such party’s products or services and (c) any breach of any representation and warranty. THESE INDEMNIFICATION PROVISIONS set forth the sole and exclusive remedy of the indemnities, and the entire obligation and liability of the indemnitor, as to any infringement claims in connection with this agreement.
Section 10. General.
All notices required or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given on the date such notice is delivered, if delivered personally, sent by registered or certified U.S. mail (postage prepaid), or via facsimile or email to the parties at the address set forth in Exhibit A of this Agreement. Notwithstanding the foregoing, this Agreement shall not be modified or amended except by a writing signed by all parties hereto.
This Agreement shall be governed by, construed, and interpreted in accordance with the laws of the state of Indiana, and any controversy between the parties hereto or relating to the subject matter of this Agreement shall be in Hamilton County, Indiana. This Agreement contains the entire agreement between the parties and supersedes all previous agreements, whether oral or written.
If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, this Agreement shall be enforced to the maximum extent possible. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder.
Section 11. Non-Disclosure of Confidential Information.
In the course of performing services pursuant to this Agreement, User and Company may have access to information about business, products, processes and services, that is not commonly known outside of Company’s and Users business (collectively, “Proprietary Information”). All Company and User Proprietary Information shall at all times remain the property of Respective Owner and Company and User will not, during the term of this Agreement or thereafter, directly or indirectly use or disclose any Proprietary Information without having first obtained written permission to do so. Upon termination of this Agreement, for whatever reason, or upon request, Company and User will deliver all notes, documents, records and similar repositories of Proprietary Information, including all copies thereof, then in Company and User’s possession or under Company and User’s control.
Section 12. NON-EXCLUSIVE TRADEMARK License to Company.
User hereby grants to Company a non-exclusive, non-transferable right and license to use User’s trademarks, service marks, copyrights, logos, materials, video, and other content for display on the User’s website or in User’s online advertising. Company to ask for permission before using in Company’s marketing materials. Company agrees that no other public use will be made of the User’s trademarks, will not transfer ownership, service marks, copyrights, or logos unless written authorization is received from User.
Section 13. OWNERSHIP.
Any Software, design, coding, content, framework, etc. created as part of the Services belongs to User.