MASTER SERVICES AGREEMENT
Updated September 28, 2021
This Master Services Agreement (“MSA”) is between Inspry Media LLC, d/b/a Inspry a Georgia corporation of with offices located at 691 John Wesley Dobbs Ave NE, Suite C, Atlanta, GA 30312 (“Inspry”) and the client identified in the applicable Statement of Work (“Client”) and is effective as of the date of the applicable Statement of Work (“Effective Date”). The parties agree as follows:
1.1. “Agreement” means this MSA and any and all Statement of Works entered into by the parties hereto.
1.2. “Background Materials” means all materials, information, concepts, designs, content, utilities, processes, methodologies, algorithms, protocols, routines, methods, software (both object and source code) and tools, the Intellectual Property Rights which are owned by Inspry and which are: (a) in existence prior to the date on which they were first used in connection with the Services; and/or (b) materials of general applicability or use to Inspry’s business and/or clients;
1.3. “Changes” means changes to the Deliverable(s), Services and/or Statement of Work as agreed between the parties in accordance with the procedures set forth in Section 4;
1.4. “Deliverable(s)” means all tangible and intangible works described in a Statement of Work that are developed, licensed, or acquired for Client and provided to Client by Inspry under the Agreement;
1.5. “Intellectual Property Rights” means all copyrights, patents, database rights, trademarks, design rights, domain names, inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration, any goodwill in any trade or service name, rights to sue for passing off, rights in designs, trading style or get-up and any other proprietary right, whether registered or not now known or hereinafter created together with all extensions and renewals of such rights;
1.6. “Project” means any project agreed upon by the parties from time-to-time pursuant to which Inspry is to perform Services as more fully described in a Statement of Work;
1.7. “Services” means the services to be provided by Inspry under the Agreement (including the development and delivery of any Deliverable(s);
1.8. “SOW” means a Statement of Work document/agreement that the parties enter into that references this Master Services Agreement;
1.9. “Specification” means (where applicable) the technical and functional specification of the Deliverable(s) set forth in an applicable SOW;
1.10. “Special Terms” means any terms set forth in a SOW that are expressly stated to vary the terms of the MSA for the Project covered by a specific SOW;
1.11. “Third Party Materials” means materials for which the Intellectual Property Rights are owned or licensed by a third party, but excluding any open source software;
1.12. “Hourly Rate” means the hourly rate that is in place at the time a service is requested, not at the time the MSA or a SOW agreement is signed;
1.13. “Acceptable Use Policy” means the Inspry general Acceptable Use Policy governing Inspry’s use of Services, including, but not limited to, online conduct and Inspry’s Acceptable Use Policy, which can be found at https://www.inspry.com/acceptable-use-policy.
2.1. Inspry shall, from time to time during the term of the MSA, perform Services and supply Deliverable(s) to Client in accordance with the terms and conditions of the MSA and all applicable SOWs. Details of each Project, including the Services and Deliverable(s) to be supplied under such Project, shall be set forth in a SOW.
2.2. Upon approval of a SOW by both parties, any conflicting or supplementary terms of a SOW shall supersede the MSA and shall be binding upon the parties and shall be incorporated into and form part of the MSA.
2.3. Inspry shall only be obliged to supply Services and/or Deliverable(s) as expressly set forth in a SOW and shall not be obliged to supply any Services and/or Deliverable(s) for a Project until both parties have approved the applicable SOW.
2.4. A SOW details the work Inspry will deliver including without limitations, the Deliverable(s) and specifications thereto, and any and all compensation to be paid for such work.
2.5. If additional Services are requested by Client, the parties may enter into one or more additional SOWs signed by the parties.
3. CLIENT OBLIGATIONS
3.1. Client shall be responsible for specifying in a SOW, fully and clearly to Inspry, its requirements for the Services and Deliverable(s).
3.2. If the performance of any Services requires the use of any information (including, without limitation, claims and representations about Client’s products/services), documentation, equipment, software, trademarks, talent, text, video, artwork or other material to be supplied to Inspry by Client or subject to agreements entered into by Client independent of Inspry (such as promotion agreements, sponsorship agreements, etc.) (collectively, “Client Materials”), then Client agrees to promptly provide Inspry with the Client Materials at no charge, and Inspry shall not assume any responsibility or liability for the acquisition of the Client Materials.
3.3. Client shall be responsible for obtaining all rights, permissions and licenses necessary for Inspry to use the Client Materials, including any third-party content which is part of the Client Materials. Client guarantees any Client Materials are owned by Client, its affiliates or Client has secured legal permission from the owner of such third-party content to use them in a manner consistent with the Project. Client agrees to protect Inspry from any claim by a third party that the assets supplied to Inspry from Client are their intellectual property or are in use without permission.
3.4. Inspry’s ability to perform its obligations under the Agreement may be dependent on Client, Client’s agents, or third-party platforms/providers (e.g. software platforms) fulfilling their obligations. In particular, Inspry will use commercially reasonable efforts to guard against any loss to Client caused by the failure of software vendors, media, suppliers or others to perform in accordance with their commitments, but Inspry will not be responsible for any such loss or failure on their part. To the extent that Client or such third party platforms, contractors or agents do not fulfill their obligations under the Agreement, then Inspry: (a) will be relieved of its obligations to Client to the extent that Inspry is prevented from performing the Services and delivering the Deliverable(s) in accordance with the Agreement; and (b) shall not be liable for any costs, charges or losses sustained by Client arising directly from any such failure to fulfill its obligations under the Agreement.
3.5. Client agrees to protect and restrict any computer systems or devices that access or have authorization to Deliverable(s) or Services associated with the Project through the use of reasonable security measures including, but not limited to employing updated security software, patched operating systems, latest web browser version, and updated applications. Client agrees to use unique and strong passwords for any systems or devices that access or have authorization to Deliverable(s) or Services associated with the Project.
3.6. Client agrees to provide and authorize Inspry and associated agents the right of access to equipment and data, as is reasonably needed, for purposes of performing Services and completing the Deliverable(s). Inspry will take all reasonable care to ensure the work is complete in a professional manner with minimal interruptions to Client associated systems or devices.
3.7. Client is solely responsible for maintaining insurance coverage for any claims which may arise under this Agreement and for which Client may be legally liable. It is the responsibility of Client to adequately insure against business interruption, loss of business or other losses. Inspry shall not have responsibility to Client for Client failure to maintain sufficient insurance coverage. Inspry liability shall not exceed that which is set forth in this Agreement.
3.8. Client agrees to compliance with Law and Acceptable Use Policy. Client covenants, represents and warrants that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will, and shall cause its customers and users to, comply at all times with (i) all applicable laws, rules, regulations, accrediting agency standards, and orders of governmental authorities (collectively, “law(s)”) governing Client’s use of the Services and (ii) the Acceptable Use Policy, as updated by Inspry from time to time. The Acceptable Use Policy is incorporated herein and made a part hereof by this reference. Inspry may change the Acceptable Use Policy upon fifteen (15) days’ notice to Client, which notice may be provided by posting such new Acceptable Use Policy at the Inspry website. Client may request a current copy of the Acceptable Use Policy by sending or emailing a written request to Inspry, or by visiting the Inspry website. Client agrees that it has received, read and understands the current version of the Acceptable Use Policy
3.9. Client agrees to Emails and CAN-SPAM Compliance. Client covenants, represents and warrants that it will not use the Services for the sending of unsolicited email (“spam”) in violation of applicable law. In connection with the foregoing, Customer hereby covenants, represents and warrants that: (i) Client shall ensure that all messages, communications and data sent using the Services comply with all requirements of the CAN-SPAM Act and other related anti-spam laws; and (ii) Client will not, and will not permit any third party to use the Services for the sending of unsolicited bulk email in violation of the CANSPAM Act or other related anti-spam laws.
3.10. Client is solely responsible for meeting any required legal compliance pertaining to data privacy, accessibility-related laws or regulations regarding the Project Deliverables in private or public domains. Inspry is not responsible nor ever guarantees to meet compliance regarding such laws and regulations including, but not limited to Privacy Policies, Terms and Conditions, HIPAA, FERPA, WCAG, CCPA, CalOPPA and GDPR. In the event Inspry provides any written documents or performs any service pertaining to such compliance, Inspry does not guarantee that this language and / or Deliverable complies with any governing body’s requirements. Client is responsible to have such language or Deliverable reviewed by legal counsel.
4. PROJECT ADMINISTRATION PROCEDURES
4.1. Both parties acknowledge that cooperation and teamwork are essential for the success of each Project. Both parties agree to use mutually agreed upon processes to report the progress of each Project and to identify, track, and resolve project issues, and questions. Inspry shall be entitled to charge Client for both internal project administration hours and hours spent communicating with Client regarding the applicable SOW.
4.2. In order to accommodate the approval of Changes and other necessary communications, Client agrees to designate a single representative (“Client Representative”) with the authority to: (a) provide all approvals, including approving Changes and the cost of Changes; and (b) resolve Project related issues (c) provide feedback on Deliverable(s).
4.3. Inspry requires this Client Representative to respond to inquiries, comments, feedback, revisions and other communications from Inspry within 3 business days (subject to reasonable exceptions deemed value Inspry), and to have authority to make final decisions on the Project.
4.4. If the Client requests to change the appointed Client Representative during the course of the project, this request must be communicated to Inspry in a written statement via an approved communication channel in Section 5 below. All project progress will be put on hold until a new Client Representative has been established and the new Client Representative will be required to re-approved all previously approved milestones and Deliverable(s) completed during the course of the project.
4.5. Inspry shall not be responsible for any delay in the performance of the Services resulting from the unavailability of the Client Representative to provide the necessary approval on behalf of Client.
4.6. Inspry shall be entitled to assume that any other Client associate purporting to have the authority to approve work, Expenses and/or Third Party Costs on behalf of Client does have the requisite authority.
4.7. Both parties acknowledge that Changes are a likely result of the collaborative process under which the parties shall be working. Upon either party proposing a Change, Inspry shall provide Client with a description of the estimated cost of implementing the Change and the estimated impact of a Change on the Project (“Change Order”). Upon approval of the Change Order by Client, the Agreement and the applicable SOW shall be automatically amended by the approved Change Order.
4.8. Inspry shall be entitled to charge Client at an hourly rate for the time spent in assessing a Change proposed by Client.
4.9. Pending approval of the Change Order by Client, Inspry shall continue to perform and be paid for the Services as if the applicable Change had not been requested.
4.10. The parties may agree in a SOW that Client’s approval is required before Inspry may proceed with the next step(s) in relation to particular Services and/or Deliverable(s) and/or prior to incurring Expenses or Third Party Costs in connection with the Services.
4.11. A Project requiring a “Rush” will typically incur at least a 50% markup of the total project cost. Inspry will notify Client ahead of time if the Project will incur a ‘Rush’ fee.
5.1. Both parties acknowledge a communication schedule Monday through Friday from 8:00 am to 5:00 pm Eastern time excluding weekends or holidays.
5.2. Client Representative and associated stakeholders may be asked to communicate via specific communication channels including email, project management software, and/ or scheduled online meetings at the discretion of Inspry. The Client Representative may be required to sign-up or provide feedback on online software platforms specified by Inspry including, but not limited to project management software and video delivery software.
5.3. Both parties acknowledge mobile phone, text message, social media, or instant/private messaging (like Facebook Messenger) are not available means of communication.
5.4. The Client Representative is required to participate in all key project meetings at the discretion of Inspry
5.5. Unless otherwise specified in the applicable SOW, any hours designated for training-related Services will occur in a single session via online software facilitated by Inspry. All Client required stakeholders and parties should be available and attend including the Client Representative. If a required party of the Client is not able to attend, a new training session day and time should be agreed upon by both parties.
6. PROJECT TIMEFRAMES AND STATUSES
6.1. Deliverable(s) are dependent on a number of factors, including but not limited to the complexity of the Project, Inspry’s current workload, material availability, and any problems that might arise during the course of the Project. Unless specifically guaranteed in the SOW, Inspry does not guarantee the due dates of Deliverable(s) outlined in the SOW.
6.2. The Project is considered delayed if Client response to an Inspry request for assets, information, feedback, approvals, or other communication is delayed for more than 5 consecutive business days. When a Project is delayed, Inspry has the right to remove the Project from the active Projects queue and deprioritize the Project internally. Services will resume on a delayed Project when Inspry has received what was requested and the queue of Services allows Inspry to focus on the Project.
6.3. The Project is considered suspended if Client response to Inspry’s request for assets, information, feedback, approvals, or other communication is delayed for more than 45 days without a reasonable cause as determined by Inspry. When the Project is suspended, an invoice for the remaining balance of all Project Deliverable(s) shall be sent and considered due upon receipt. Once the Project is considered suspended, it is the sole responsibility of the Client to reactivate the project by (1) supplying all items, assets and feedback necessary to complete the project and (2) paying the balance of the Project in full. After the Project is considered suspended, Inspry will not perform any additional work on Deliverable(s) until the Project has been reactivated.
6.4. The Project is considered abandoned if Client response to Inspry’s request for assets, information, feedback, approvals, or other communication is delayed for more than 90 days without a reasonable cause as determined by Inspry. When a Project is abandoned, any monies paid to Inspry for the specified Project or SOW shall be forfeited. If Client wishes to reinitiate the Project in the future, a new SOW must be created and terms / conditions / fee may differ and are up to the discretion of Inspry.
7. CLIENT ACCEPTANCE
7.1. Upon delivery to Client of completed Deliverable(s), Client shall examine such Deliverable(s) and notify Inspry in writing within the time period set forth in the SOW, or such other date agreed by the parties in writing, as to whether it accepts such Deliverable(s) or rejects them. If no such date is specified, Client will have 5 business days to inspect the Deliverable(s) to verify that it conforms in all respects to the applicable specifications specified in the applicable SOW. Upon completion of the 5 business day period, if Client has not delivered a Rejection Notice (as defined below) such Deliverable(s) shall be deemed automatically accepted by the Client. Client may only reject Deliverable(s) if and to the extent that they fail to conform in all material respects to the Specifications set forth in the relevant SOW.
7.2. If Client reasonably determines in good faith that a Deliverable(s) does not conform to the applicable specifications or does not otherwise pass the applicable acceptance criteria set forth in the applicable SOW, if any, Client will promptly notify Inspry of its determination in a written notice (by communication methods approved in Section 5) setting forth a description of the nonconformities exhibited by the Deliverable(s) (“Rejection Notice”).
7.3. Upon rejection of any Deliverable(s) in accordance with Sections 7.1 and 7.2, Client shall require Inspry to correct and resubmit such Deliverable(s) within thirty (30) days (or such other period agreed between the parties in written communication) for re-examination in accordance with the provisions of this Section 7.
7.4. Any Deliverable(s) resubmitted by Inspry pursuant to Section 7.2 above shall be subject to the procedure set forth in Section 7.1. If, in Client’s reasonable opinion, the resubmitted Deliverable(s) (or any part thereof) still fail to conform in all material respects with respect to the Specifications set forth in the relevant SOW, Inspry may elect to correct the defects identified at no extra cost to Client. If Inspry is unable or unwilling to correct any identified defects, Client shall, as its sole remedy, be entitled to accept such part of the resubmitted Deliverable(s) (or any part thereof) as Client may decide. Where Client only accepts part of the Deliverable(s), Inspry shall reduce the Fees (as defined below) proportionately.
8. FEES AND EXPENSES
8.1. Client shall pay Inspry the Fees (the “Fees”) calculated and payable for each Project in accordance with the terms of the applicable SOW. In addition to the Fees, Inspry will invoice Client for all reasonable expenses (“Expenses”) incurred by Inspry in connection with the performance of the Services. Such expenses include, but are not limited to those incurred for travel, fonts, stock imagery, stock video, server hosting, third-party software and API access, and technologies, etc. All such expenses incurred will be invoiced by Inspry to Client and Client shall pay such an invoice no later than thirty (30) days after the date of the applicable invoice is delivered.
8.2. The Fees, Expenses and Third Party Costs (as defined in Section 9) will be invoiced in accordance with the payment terms set forth in Section 8.4 below unless specified in the SOW. These Fees, Expenses and Third Party Costs shall be payable in full within thirty (30) days of the date of the relevant invoice without deduction, withholding or set-off except any deduction or withholding which is required by law. Interest will accrue on any past due amounts at a rate equal to two percent (2%) per month, or the maximum amount permitted by law, whichever is less. Client agrees to pay all reasonable attorneys’ fees and/or collection costs that Inspry incurs as a result of collecting past due amounts.
8.3. If Client is overdue with any payment hereunder, then without prejudice to Inspry’s other rights or remedies, Inspry shall have the right to immediately suspend performance of the Services including, but not limited to suspension of Client website or application from the public’s online view until Inspry has received payment of the overdue amount, together with any accrued interest. In addition, the Project will be suspended in which no work on the project will be continued until the full amount due has been paid.
8.4. Standard payment term include the following: 50% of the Cost of a SOW due as a non-refundable deposit upon execution of a SOW and this Master Services Agreement; 25% of a SOW due 30 days after execution of a SOW and this Master Services Agreement; 25% of a SOW due when the final Deliverable(s) is transferred to Client, otherwise 60 days after execution of this agreement, whichever comes first.
8.5. Any amount of the Change Budget utilized is due when the final Deliverable(s) is transferred to Client (typically included on the final invoice).
8.6. The Project must be paid in full, including any amount of the Change Budget used, prior to when the final Deliverable(s) is transferred to Client.
8.7. Inspry has the right to request that the payments structure is subdivided into smaller percentages than in Section 8.4 based on milestone or Deliverable(s) delivery to Client. In the event of such a payment structure, these milestones or Deliverable(s) will be specifically detailed in the SOW.
8.8. Payments can be paid to Inspry using check, ACH, or Visa, Mastercard, Discover or American Express credit card. Postdated checks are not an acceptable form of payment.
8.9. Inspry has the right to require a credit card on file or saved to initiate the Project.
8.10. Client further acknowledges and agrees that if a check tendered for payment is not honored by the bank for non-sufficient funds (“NSF”), it will not be re-deposited. If the bank does not clear the check, Client will incur a fee of $30. Client must immediately send a certified check or money order for the amount due, including the NSF fee, to inspry to cover the returned check.
9. THIRD PARTY SERVICES & DISBURSEMENTS
9.1. In addition to the Fees and Expenses, Inspry will invoice Client for all goods and services purchased by Inspry from third parties for the purposes of providing the Services and Deliverable(s) to Client (“Third Party Costs”).
9.2. In purchasing any of the goods and services referred to in Section 7.1, Inspry will obtain Client’s authorization before making any commitments or expenditures on Client’s behalf at Inspry, and Inspry is authorized to act on Client’s behalf as an agent for a disclosed principal for the purpose of entering into agreements to purchase such goods and services, including, without limitation, securing software, advertising space or time, services, materials or information in connection with performing Inspry’s Services pursuant to the Agreement.
9.3. Client understands that Inspry shall not be required to finance Client’s advertising and marketing efforts. As such, Inspry shall not be required to advance money or go out of pocket on Client’s behalf in connection with its Services performed for Client. If Inspry incurs Third Party Costs on Client’s behalf, Client agrees that, notwithstanding anything in the Agreement to the contrary, any payment that Inspry must make on Client’s behalf to such third party must be collected from Client no later than a reasonable time prior to the date on which Inspry must commit to making such payment on Client’s behalf – even if such required payment date is prior to the date that is thirty (30) days from Client’s receipt of Inspry’s invoice. In the event that Inspry does not receive payments by the date(s) set forth above, Inspry shall have the right to not purchase or contract on Client’s behalf or to cancel any contracts previously entered into on Client’s behalf. In the event that Inspry cancels any such contracts at Client’s request or due to Client’s non-payment of amounts previously approved for expenditure by Client, in writing, Client shall be responsible for any charges and fees incurred prior to, or as a result of, such cancellation.
9.4. Unless otherwise stated in the Agreement, Inspry’s contracts with third party suppliers in connection with the Services and Deliverable(s) shall be made in accordance with such suppliers’ standard or individual conditions and contracts as passed through to Client. The rights and liabilities as between Client and Inspry in connection with such third party supplied Services and Deliverable(s) shall correspond to those between Inspry and such suppliers under such conditions, including any rights of amendment, omission and cancellation.
9.5. Inspry guarantees that all elements of the work including, but not limited to images, video, artwork, code, etc. delivered to Client are either owned by Inspry or that Inspry has obtained appropriate legal permission from the owner to provide them to Client. Client agrees to protect Client from any claim by a third party that the assets Inspry delivered as part of the project are their intellectual property or are in use without permission.
9.6. Client acknowledges Inspry may use commercial software in the course of completing Deliverable(s) that may require an annual licensing fee for on-going software updates and support. The associated costs of each software license should be specified in the SOW. These costs are subject to change at any time during the course of the project and following the completion of the project. Any licensing, support, or subscriptions associated with third party services or vendors is the responsibility of Client. Inspry cannot be held liable by any change in scope or costs from modifications or alterations executed by third party services or vendors during the course of the Project or thereafter.
9.7. At Inspry’s discretion, commercial software may be provided to complete Deliverable(s) using the latest versions publicly available at the start of the Project, This does not alter Client’s responsibility for any necessary third party software support, subscription and licensing during the course of the Project or once the Project is complete.
10. INTELLECTUAL PROPERTY
10.1. As between Client and Inspry, the Deliverable(s) (other than Background Materials) that Inspry produces on Client’s behalf as part of the Services, and any and all Intellectual Property Rights associated therewith, will become Client’s property when Client has paid Inspry’s invoices. As between Client and Inspry, and upon payment of Inspry’s invoices, the Deliverable(s) shall be considered “works for hire” as defined under the Copyright Act of 1976, as amended. If, for any reason, the Deliverable(s) are deemed not to be works for hire, Inspry hereby assigns to Client all of Inspry’s right, title and interest in and to the Deliverable(s). At Client’s cost and expense, Inspry shall cooperate with Client and execute all reasonable documents and take other necessary actions as reasonably directed by Client to effect the foregoing grant of rights. Inspry shall waive all moral rights in and to the Deliverable(s).
10.2. Inspry shall retain ownership of all Background Materials (including, without limitation, all Intellectual Property Rights therein). To the extent that such Background Materials form a part of any Deliverable(s), upon payment of all Fees due hereunder for such Deliverable(s), Inspry hereby grants to Client a non-exclusive, royalty-free, worldwide license to use such Background Materials in connection with the use, operation and maintenance of the Deliverable(s) incorporating such Background Materials. Client shall not use Background Materials independently of the Deliverable(s) and shall not distribute, resell, sell or license any Background Materials independently of the Deliverable(s), or any derivative work or component thereof, to any third party for any reason.
10.3. If and to the extent that any of the Deliverable(s) comprise or include any Third Party Materials, the applicable third party supplier will retain ownership of all Intellectual Property Rights in the Third Party Materials.
10.4. Notwithstanding any of the above: (a) where a SOW specifies that certain Deliverable(s) may only be used for a specific situation, function or campaigns and/or for a specific usage period, territory and/or platform, Client shall only be entitled to use the Deliverable(s) in accordance with the usage terms set forth in the applicable SOW. Any extended or additional usage shall require Inspry’s prior agreement and may be subject to additional payment and/or conditional upon third parties granting extended or additional rights to use relevant Third Party Materials; (b) Inspry shall be able during and after the term of the Agreement to use any Deliverable(s) for the purpose of promoting Inspry’s own business; (c) Inspry shall retain all Background Materials and all know-how obtained in connection with the Services and nothing shall prevent Inspry from using any know-how, ideas, assets, code or concepts acquired before or during the performance of the Services for any purpose.
10.5. Client grants to Inspry a non-exclusive, royalty-free, worldwide license for the duration of each Project to use, reproduce, create derivative works from, translate, execute, display, upload, store, modify and distribute Client Materials solely to provide the Services and create the Deliverable(s) contemplated by the relevant SOW. Any materials provided by Client to Company are to be used solely to perform the Services. Client hereby grants to Company a non-exclusive, worldwide, royalty-free license in and to any Deliverable(s) under the applicable SOW and Client Materials, under all of Client’s intellectual property rights therein, solely for the purpose of performing the Services contemplated by any SOW in accordance with the terms of this Agreement. Client also hereby grants to Inspry a non-exclusive, worldwide, royalty-free license to use any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client (the “Client Brand”) solely for the purpose of performing the Services contemplated by any SOW in accordance with the terms of this Agreement.
10.6. Client acknowledges that Inspry shall not conduct trademark or patent searches as part of the Services for a Project unless Client separately engages Inspry to perform such services and payment for such services is specifically indicated in a SOW. Therefore, notwithstanding anything to the contrary, Inspry shall not be responsible for searching or clearing any trademarks, service marks, trade names, logos and slogans used in connection with the Services (the “Marks”) and, except to the extent of Inspry’s actual knowledge, shall not be responsible for any claims of infringement in connection with the Marks. Inspry shall provide Client with all reasonable assistance, at Client’s expense, in connection with Client’s decision to search, clear or seek registrations for any Marks owned by Client as a result of the Services.
10.7. If any project, service or Deliverable(s) requires Client to obtain, for use in connection with the projects, services or Deliverable(s), any material from a third party from whom Inspry or Client has not acquired the necessary right or license for the use or incorporation, then Client will, at its sole expense, acquire the necessary right or license to the third party material.
10.8. Notwithstanding anything to the contrary, Client hereby grants to Inspry a non-revocable, non-exclusive, worldwide, royalty-free license to use the Client Brand and any Deliverable(s) solely for the purpose of use in connection with Inspry’s physical or electronic portfolio and/or website that Inspry shows to other potential clients in the ordinary course of Inspry’s business including but not limited to case studies, web pages, blog posts, social media posts, magazine articles, and videos. Inspry retains the right to use Client Name and Client Brand within its roster of clients.
10.9. Inspry shall own and retain all rights to any and all programming source code, software, technology, concepts, ideas, designs and other work, materials and information the creation or development of which predate this Agreement, including all modifications thereto made during the term hereof.
11.1. Each of the parties acknowledges that, whether by virtue of and in the course of the Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
11.2. Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (d) is already known to the recipient before receipt hereunder.
11.3. Each of the parties undertakes to maintain the confidentiality of the other party’s Confidential Information at all times and to keep the other party’s Confidential Information secure and protected against theft, damage, loss or unauthorized access. Neither party shall at any time, whether during the term of the Agreement or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorize or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.
11.4. Neither party shall be in breach of this Section 9 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given (to the extent legally permitted) reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
12.1. Inspry warrants that: (i) it has the right to enter into the Agreement, and to grant the rights granted hereunder; (b) it will perform the Services with reasonable skill and care in a competent and professional manner; and (c) on the date of delivery, the Deliverable(s) in finished and final form (“Final Deliverable(s)s”) will comply in all material respects with the applicable Specification.
12.2. Client warrants that: (a) it has the right to enter into the Agreement and to grant the rights hereunder and it has no conflicts that would prevent it from performing its obligations hereunder; (b) the use by Inspry of Client Materials in accordance with the Agreement shall not infringe upon the Intellectual Property Rights or any other right of a third party; and (c) the Client Materials are accurate and complete and comply with all applicable laws, regulations and codes of practice.
13.1. Client agrees to use all Inspry services and facilities at their own risk. Inspry specifically disclaims all warranties of merchantability and fitness for a particular purpose. In no event shall Inspry be liable for any loss, or loss of data, or other commercial damage, including but not limited to special, incidental, consequential or other damages.
13.2. Subject to Section 13.4, Inspry agrees to defend, indemnify and hold Client harmless from and against any claims, demands, losses, damages, liabilities, expenses (including legal costs) (collectively, “Losses”) made or brought or incurred by Client arising from any third-party claim pertaining to libel, slander, defamation, copyright infringement, invasion of privacy, piracy, and/or plagiarism under U.S. law arising from Client’s use in the United States of any Final Deliverable(s), except to the extent such Loss: (a) is covered by the indemnification obligations of Client to Inspry in Section 11.2; (b) arises from or relates to any modification to any Deliverable(s) not performed by Inspry; or (c) arises from or relates to Client’s use of any Deliverable(s) other than in accordance with the Agreement.
13.3. Subject to Section 13.4, Client agrees to defend, indemnify and hold Inspry, its subsidiaries, contractors, employees and affiliates and each of their respective directors, officers, employees, shareholders and agents (each an “Indemnified Party”) against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to the (a) Agreement, Inspry’s Acceptable Use Policy or associated Agreements; (b) Client’s use of the Services; (c) breach of any confidentiality obligation or any alleged infringement of any trademark, copyright, patent or other intellectual property right of any person or third party or any claim that such materials are defamatory or otherwise not in compliance with applicable law; (b) Client’s products or services; (c) Client’s gross negligence or willful misconduct; (d) a breach (or alleged breach) by Client of any of its representations, warranties or other provisions in the Agreement; (e) any injury to person or property caused by any products or services sold or otherwise distributed in connection with Inspry servers (f) any defective products sold to Client from Inspry servers; and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
13.4. Where a claim is made by a third party against a party, which may give rise to a claim by that party against the other party under either of the indemnities in this Section 13, the party providing indemnification will only do so to the extent that: (a) the indemnified party provides prompt written notice of any claims or actions for which it claims indemnification; (b) the indemnified party provides the party providing indemnification with reasonable assistance and cooperation in the defense of such claim or action; and (c) the party providing indemnification will have sole control over the defense and settlement of any such claim or action in accordance with the terms of this Section 13.
14. LIABILITY/DISCLAIMER OF WARRANTIES
14.1. Inspry will perform all Services in accordance with good industry practices and at the standard expected from a suitably qualified person with relevant experience. Inspry cannot guarantee work will be error-free and so Inspry cannot be liable to Client or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if Client advises Inspry of them.
14.2. Subject to Section 14.4, neither party shall be liable under or in connection with the Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of any benefit, loss of data or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including ordinary negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known. FURTHER, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ITS SERVICES, PRODUCTS AND ANY MATERIAL PROVIDED PURSUANT TO THIS MSA OR ANY SOW
14.3. INSPRY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, SECURITY BREACHES, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT SERVER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL.
14.4. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF INSPRY, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR HARM CAUSED BY OR RELATED TO THE CLIENT SERVICES OR INABILITY TO UTILIZE THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
14.5. Subject to Section 14.4, Inspry’s total aggregate liability under or in connection with any SOW, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Fees paid by Client in respect of that SOW, but excluding any sums paid by Client in respect of Third Party Costs or Expenses. Subject to Section 14.4, Client’s total aggregate liability under or in connection with any SOW, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the total Fees, Expenses, and Third Party Costs payable by Client in respect of that SOW.
14.6. Nothing in the Agreement shall exclude or in any way limit either party’s liability for indemnification obligations or any other liability to the extent that the same may not be excluded or limited as a matter of law.
14.7. Any condition, warranty representation or other term concerning the performance of the Services and the supply of the Deliverable(s)s which might otherwise be implied into or incorporated into the Agreement whether by statute, common law or otherwise, is hereby excluded to the fullest extent permissible by law. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Inspry except as specifically stated in this MSA or the applicable SOW.
14.8. Inspry shall not be responsible for or liable for any losses, damages, liabilities, claims, costs or expenses arising in connection with: (a) any modifications, adaptations or amendments to any Deliverable(s) made by Client or by a third party on Client’s behalf; (b) any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverable(s) arising due to the acts or omissions of Client, its employees, officers, agents or subcontractors; (c) the incorporation in the Deliverable(s) of, or Inspry’s reliance upon, any Client Materials; or (d) any use of the Deliverable(s) other than in the manner contemplated by the Agreement.
14.9. Further, certain digital projects allow consumers to upload, download and otherwise interact with the digital materials that Inspry produces. Inspry is not responsible for any consumer-generated content (blogs, digital materials, comments, etc.) or for any use by third parties of materials that are contained in any digital materials. In addition, many websites and other digital materials link to one another, and Inspry is not responsible for materials and websites to which any Inspry-produced digital materials link with Client’s authorization (including any references to those third party materials and websites (e.g., descriptions, titles, trademarks, etc.) included in Inspry-produced digital materials to delineate or describe the existence of the link) nor for third party materials or websites that link to any Inspry-produced digital materials. Client and Inspry may decide that the digital materials will pull in feeds and other third party materials on a more real-time basis (RSS feeds, social media feeds, etc.) or may buy media/place advertising on social media sites which then places Client’s materials in proximity to, or uses Client’s materials in conjunction with, consumer names, pictures and/or other consumer content, and Client understands that Inspry cannot be responsible for these feeds, media placements (i.e., claims that arise out of the nature of the space, program or media buy purchased, rather than out of the particular content (if any) produced by Inspry for insertion in these media) or other content.
14.10. Client shall be responsible for verifying and confirming the accuracy of any and all statements made in the Deliverable(s) about Client, its business, products, services, industry and/or competitors, and Client undertakes to notify Inspry forthwith if the Client considers that any statement made in any document submitted by Inspry to the Client for approval is incorrect or misleading in any way.
15. TERM & TERMINATION
15.1. The term of the MSA shall commence as of the Effective Date and shall continue into perpetuity unless terminated as set forth below.
15.2. Each Project shall commence on the date set forth in the applicable SOW and shall, subject to earlier termination in accordance with the terms of the MSA, continue in operation for the term specified in the applicable SOW.
15.3. Either party may terminate the Agreement immediately upon written notice to the other in the event: (a) of any material breach of the Agreement, Inspry’s Acceptable Use Policy or any other associated Agreements by the other party which breach is not remedied (if remediable) within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or (b) that the other party ceases carrying on business in the normal course, or becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors.
16. CONSEQUENCES OF TERMINATION
16.1. Termination of a Project in accordance with its terms by either party shall not serve to terminate the MSA or any other Projects thereunder, each of which shall continue in full force and effect.
16.2. Upon termination of the MSA under Section 16.3, all outstanding Projects shall also be terminated.
16.3. Notwithstanding any other provision of the Agreement, upon termination of the MSA or a Project for any reason: (a) Client shall immediately pay Inspry all Fees and Expenses under the applicable SOW at Inspry’s discretion, whether then due or not, together with all Third Party Costs incurred by Inspry affected by such termination. (b) provisions of the Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination
16.4. Any Deliverable(s) or assets developed during the course of the Project associated with the terminated Project will be delivered to Client when all Fees and Expenses in Section 8 are paid in full.
17.1. If, due to strikes, industrial action short of a strike, lockouts, accidents, fire, blockade, flood, changes in the law, terrorist attacks, natural catastrophes, systems or telecommunications/internet failure, power failure or failure of subcontractors nominated by Client or other obstacles beyond a party’s reasonable control (“Force Majeure Event”), that party fails to perform any of its obligations under the Agreement, that party shall not be held responsible for any loss or damage which may be incurred as a result of such Force Majeure Event. Should the Force Majeure Event continue for longer than one (1) month or such other period as the parties may have expressly agreed in a SOW affected by the Force Majeure Event, the party adversely affected shall have the option of terminating the Agreement immediately without further liability other than such liabilities as have already accrued up to the effective date of termination. In no event shall a Force Majeure Event have the effect of discharging or postponing Client’s payment obligations under the Agreement.
17.2. All notices required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been given: (a) on the date actually delivered, if delivered, by hand or by email, with confirmed receipt; or (b) three (3) days after posting, postage prepaid, return receipt requested, in each case to the address, and marked for the attention of the individual(s), specified in the relevant SOW.
17.3. The relationship of the parties to the Agreement is that of independent contractors and, other than as set forth herein, no other formal legal relationship is intended. Inspry may, without the consent of Client, subcontract portions of the Services to be provided under the Agreement to third parties or individuals selected by Inspry in the United States or elsewhere. Client is prohibited from directly contacting or soliciting subcontractors associated or hired by Inspry for employment or contract work of any kind. No agency, partnership, joint venture or employment is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party’s methods of operation.
17.4. Each section of the Agreement is intended to stand alone. If any section is waived, or held invalid or unenforceable, it is the intent of the parties that the remainder of the Agreement remain valid and enforceable and shall be enforced to the fullest extent as if such clause had not been included.
17.5. Any waiver, amendment or modification of any of the provisions of the Agreement or any right, power or remedy hereunder shall not be effective unless made in writing. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.
17.6. The Agreement and the rights of the parties hereunder and thereunder will be governed by and interpreted in accordance with the laws of the State of Georgia, without regard to its conflict of laws rules or choice of law principles which would require the application of the law of any other jurisdiction. Exclusive jurisdiction and venue for any claims made by either party against the other will be the state or federal courts of the State of Georgia located in Fulton County and the parties irrevocably consent to the jurisdiction of such courts. This Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
17.7. In the event of any dispute or disagreement with respect to the meaning, effect or interpretation of this Agreement or in the event of a claimed breach of this Agreement, both parties hereto agree that such dispute shall be determined through mediation. Both parties will mutually select a mediator and share the cost of mediation equally. Unless otherwise mutually agreed, the location of the mediation will be in Fulton County, Georgia. Both parties agree to cooperate fully with the mediator in good faith in order to reach a mutually satisfactory resolution of the dispute. If the dispute is not resolved within 60 days after it is referred to the mediator, either party has the option to litigate the dispute in a court of law located in Fulton, Georgia.
17.8. This MSA, and all SOWs agreed to by the parties, contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that: (a) in entering into the Agreement, it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set forth in the Agreement; and (b) to the extent that there is a conflict between the terms and conditions of any SOW or any other document and the terms and conditions in this MSA, the terms and conditions of such SOW shall govern unless otherwise specifically indicated to the contrary in such SOW by the inclusion of Special Terms.
17.9. Unless the context otherwise requires, references in the Agreement to: (a) the words “include” and “including” shall be construed without limitation; and (b) any law, rule or regulation includes any subordinate legislation/rule/enactment made from time to time thereunder and is to be construed as references to any such law, rule or regulation as modified or amended from time to time.
17.10. This MSA and any associated SOW may be executed in one or more counterparts, each of which when executed will be deemed to be an original, but all of which taken together will constitute one and the same instrument.
17.11. The section headings and captions of the Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting, the Agreement and in no way limit or affect any of the contents of the Agreement or its provisions. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. Both parties confirm that (i) each had the opportunity to review this Agreement with legal counsel of the party’s own choosing and (ii) each understand the terms of, and voluntarily and knowingly enter into, this Agreement with the intent of being legally bound by the terms hereof.
17.12. The parties acknowledge and agree that they have read, understood and have actively negotiated the terms of this Agreement, participated in its drafting and have been represented by legal counsel. Therefore, this Agreement shall not be deemed to be the product of either party and shall not be enforced or interpreted any more stringently or strictly against either party.
17.13. The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without the other party’s prior written consent. This Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and Inspry reserves the right to assign this Agreement to any Inspry affiliate or successor. If Client desires to request Inspry to consent to an assignment of this Agreement, Client shall send a formal request for consent by notice to Inspry, and should send email a written message to Inspry at [email protected] setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Client shall ensure that it provides the then-current passwords for the Administrator Account to any successor or assignee under this Agreement as, notwithstanding any such assignment, Inspry shall not provide any passwords to Client’s Administrator Account to any party.
17.14. Inspry, in its sole discretion, may amend this Agreement at any time, and in such case, Inspry will publicly publish a new version of the Agreement (“Amended Agreement”) online at the following URL: https://www.inspry.com/master-services-agreement. Client’s continued use of Inspry services, website, and execution of future SOWs after the effectiveness of any update will be deemed to represent Client’s consent to be bound by, and agreement with, the terms of the Amended Agreement. If the Amended Agreement includes any material adverse changes to Client’s rights or obligations and Client does not wish to continue using Inspry under the terms of the Amended Agreement, Client may terminate the Agreement by providing Inspry written notice within thirty (30) days. In the event of such termination, Client may request a partial refund, and Inspry will refund the prorated portion of any prepaid fees applicable to the period after the effective date of termination. Otherwise, no waiver, amendment or modification of any provision of this Agreement, and no variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification, shall be effective unless in writing and agreed to by the parties hereto. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition or default. This Agreement will not be supplemented or modified by any course of dealing or usage of trade.
17.15. Inspry reserves the right to refuse, restrict or terminate service to Client for any reason.
17.16. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
17.17. Inspry has the obligation to disclose information about Client to law enforcement agencies without further consent or notification to Client upon lawful request from such agencies. Inspry will cooperate fully with the legal requests of law enforcement agencies.
17.18. Inspry reserves all rights not specifically granted herein. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.