MASTER AGREEMENT
This Master Professional Services Agreement (this “Master Agreement” or “MPSA”) is entered into by Notice U Marketing and their Client named in Reference documents. This Master Agreement governs, in conjunction with the terms and conditions of the applicable Order Form (as defined below), and if applicable, addendums (collectively with this Master Agreement, the “Agreement”) Client’s use of Expert Services, Media Placement Services & Licensed Platforms (collectively referred to as “Services”).
The parties hereby agree to the terms and provisions of this Master Agreement.
1. Definitions
1.1. “Reference Document” Agreements, Order Forms, emails and other documentation used from time to time to direct budgets, Services, fulfill requests or detailed actions are deemed to be bound by this Agreement and will have the obligations and rights of Notice U Marketing under this Master Agreement.
1.2. “Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.
1.3. “Authorized Purpose” means the purpose of an SOW under which Client engages Notice U Marketing and may include implementing any marketing, production, consulting or Service provided by Notice U Marketing on behalf of its Clients.
1.4. “Agreement” means, collectively, this MPSA and all SOWs.
1.5. “Background IP” means all Intellectual Property owned or licensed by a party (a) before starting the Services or (b) independent of the Services. Notice U Marketing Background IP may include IP created during the Services and delivered to Client where such IP was not developed by Notice U Marketing specifically for Client and any modifications or enhancements of such IP.
1.6. “Brand Features” means each party’s trade names, trademarks, logos, and other distinctive brand features.
1.7. “Deliverables” means any work product (including third party materials) provided by Notice U Marketing to Client under the Agreement.
1.8. “Developed IP” means any Intellectual Property (other than Background IP) created or discovered by Notice U Marketing in connection with the Agreement.
1.9. “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
1.10. “Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
1.11. “Personnel” means all employees, subcontractors, and agents of Notice U Marketing and its independent contractors.
1.12. “Policies” means the Notice U Marketing Data Processing Terms available at: https://noticeumarketing.com/data-terms/, as modified from time to time.
1.13. “Services” means the professional Services that Notice U Marketing is required to provide to Client under the Agreement.
1.14. “SOW” means a statement of work, order form, work order, or other documents specifying the Services and Deliverables under the Agreement.
1.15. “Taxes” means all government-imposed taxes, except for taxes based on Notice U Marketing’s or Personnel’s net income, net worth, asset value, property value or employment.
1.16. In the Agreement, “include” and “including” means “including but not limited to,” and examples are illustrative and not the sole examples of a particular concept.
2. Services and Deliverables
2.1. Notice U Marketing’s Performance. Notice U Marketing will provide Services and Deliverables as specified in SOWs.
2.2. Notice U Marketing shall have sole and exclusive control over the way they provide Services & Deliverables specified in applicable SOWs. Client shall neither have nor exercise any specific control or direction over the methods, pacing, processes and procedures or timeline by which Notice U Marketing performs the Services required by the SOWs nor over the exercise of Agency’s independent judgment.
2.3. Upon Client request, Notice U Marketing will provide documentation and or description of standard operating procedure and expected timeline of Services to Client for review.
2.4. Client may, at their discretion, elect to change or request additional Services by providing a written request to Notice U Marketing. Transition, reduction or addition of Services require 15 business days to be implemented.
2.5. Acceptance. Any Services or Deliverables will be deemed accepted upon Client’s receipt of applicable Services or Deliverables, unless otherwise specified in the applicable SOW.
2.6. Affiliate SOWs. Notice U Marketing and any Affiliate of Notice U Marketing may enter into an SOW with Client under the terms of this MPSA. By entering into an SOW, an Affiliate of Notice U Marketing agrees to be bound by this MPSA and will have the obligations and rights of Notice U Marketing under this MPSA as applicable to such SOW. Any Affiliate of Notice U Marketing that enters into an SOW is liable for its own obligations and will be Client’s sole contracting party for purposes of such SOW and the Services related thereto. Affiliates may not amend, modify or change the terms of this MPSA, except as they specifically apply to their SOW. Each SOW that incorporates this MPSA will be a separate Agreement.
2.7. Software and Products. Notice U Marketing licenses software, solutions and platforms that it uses to deliver Services. In all instances, these platforms, their function, costs, management, functionality, and other details remain the sole property of Notice U Marketing and are not transferable to Client unless otherwise agreed in writing.
3. Price, Payment and Invoices
3.1. Rate. Client shall pay Notice U Marketing all fees and expenses in accordance with the amounts and rates set forth for in each SOW, order form or other type of quote. Notice U Marketing may invoice Client for such fees and expenses, and all amounts invoiced are fully earned as of the invoice date and are not subject to the final delivery of any Deliverable, offset, holdback, acceptance, or other contingency. Unless otherwise expressed in writing, additional Services, SOWs or requests will be invoiced for actual time at Notice U Marketing’s current prevailing hourly rate in 15 minute increments. Prevailing rate is subject to change at any time without notice. Prevailing Rate is stated on Notice U Marketing’s website at www.noticeumarketing.com/Agency-Rate.
3.2. Media Fees: Unless otherwise stated in an SOW, funding or payment method assigned to media, for media to be placed, managed or otherwise arranged for by Notice U Marketing is due prior to commencement of Media campaigns.
3.3. Time Tracking. For any SOW where Notice U Marketing is required to track time, all time spent performing the Services are billable in fifteen-minute increments. All fees generated from Services performed by Notice U Marketing are considered earned as work is performed.
3.4. Administrative Fee. With respect to any invoices issued under an SOW, Notice U Marketing may charge a flat administrative fee of five percent (5%) of the invoiced amount to cover general administrative expenses. This administrative fee does not apply to any SOW under which Notice U Marketing does not charge Client a Service fee or to any order form for Google Marketing Platform Services.
3.5. Invoices. Notice U Marketing will invoice Client in accordance with the fees specified in the applicable SOW. If no fees are specified, Notice U Marketing may invoice for Services performed at Notice U Marketing’s then-current hourly billing rate for Services performed.Notice U Marketing shall furnish receipts for out-of-pocket expenses with such invoices. Notice U Marketing’s reporting data is final and binding for invoice purposes.
3.6. Due Date. Unless otherwise stated in an SOW, payment is due within 10 days from the date of Client’s receipt of the invoice. Invoices are considered received on the same day Notice U Marketing sends the invoice to Client’s email address on the first page of this MPSA.
3.7. Dispute of Invoice. Client may only initiate invoice disputes in good faith and shall provide a written description of the disputed amounts. Upon Client’s request, Notice U Marketing will issue separate invoices for undisputed and disputed amounts. Payment of any undisputed amounts will not compromise Client’s right to object to the disputed amounts. Disputed amounts will not be due until the dispute is finally resolved and will then be payable according to Subsection 3.6.
3.8. Late Payment.
(a) Notice U Marketing may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly (or the highest rate permitted by law, if lower) from the payment due date until paid in full. In addition, Client shall reimburse Notice U Marketing for all reasonable expenses incurred by Notice U Marketing in collecting any late payments and interest including attorneys’ fees, court costs, and collection agency fees.
(b) If Client fails to pay after an invoice is due, Notice U Marketing may suspend performance of the Services until all past due amounts and interest have been paid or terminate the Agreement without incurring any obligation or liability to Client or any other person by reason of such suspension or termination.
3.9. Issuance of Credit. At their sole discretion, Notice U Marketing reserves the right to extend and or limit the amount of credit extended to Client for the Spend based on credit references and payment history. In the event that Client’s Spend has reached or exceeded the credit limit, Notice U Marketing may immediately suspend the Services and provide a written notification to Client. Notice U Marketing will resume the Services upon receipt of Client payment for the Spend. (a) Media Credit. Notice U Marketing may charge interest on any media dollars loaned to Client and paid by Notice U Marketing to any media at a rate of 20% (twenty percent) per month calculated daily and compounded monthly (or the highest rate permitted by law, if lower) from the date charges begin to be incurred by Notice U Marketing on behalf of client. Notice U Marketing will make Client aware of loaned funds at time charges begin to accrue. Interest charges will continue until paid in full by Client to Notice U Marketing. In addition, Client shall reimburse Notice U Marketing for all reasonable expenses incurred by Notice U Marketing in collecting any late payments and interest including attorneys’ fees, court costs, and collection agency fees.
3.10. Taxes. Taxes are not included in fees. Notice U Marketing, Inc. will invoice the Client for all applicable taxes for purchased services, products, and deliverables, and the Client shall pay such taxes or provide Notice U Marketing, Inc. with a valid tax exemption certificate.
3.11. Expenses. Client will reimburse expenses that meet the following criteria:(a) Actual, reasonable, and necessary (b) Approved in advance and in writing by Client or set forth in an SOW and (c) Accompanied by receipts and / or other documentation that the Client may request establishing the type, date, amount, payment, and purpose for said expenses. Client shall reimburse travel by personal vehicle at the current mileage rate set by the Internal Revenue Service.
3.12. Method of Payment. The Client shall pay Notice U Marketing, Inc. in U.S. dollars and may pay by check, ACH, wire transfer, or other method approved by Notice U Marketing, Inc. in writing. ACH and credit card transactions will incur a fee of three-point-five (3.5%).
3.13. Direct payment to third parties. When applicable, the Client may elect to or be required to contract with Third Party providers and provide direct payment. At the direction or authorization or knowledge of the Client, Notice U Marketing, Inc. will originate and or contract Third Parties on behalf of the Client and provide terms of payment to those entities. Charges or fees from Third Parties may include but are not limited to media, software, services, and materials. It is agreed that(a) Failure on the part of Client to pay for any reason, does not suspend Notice U Marketing, Inc.’s Agreement or preclude invoicing for services or activities. (b) Notice U Marketing, Inc. is not responsible for notification and or collection of charges levied by Third Parties to the Client.(c) Said agreement is between the Third Party and the Client, with legal responsibility for payment resting solely with the Client. (d) Notice U Marketing, Inc. may be periodically authorized and in possession of Client designated forms of payment for the purpose of placing said information for the purpose of arranging payment with Third Parties on behalf of the Client. Notice U Marketing, Inc. will exercise due diligence to protect and keep confidential this payment information.
3.14. Notwithstanding anything to the contrary in SOWs, order forms or other agreements, the Client will be ultimately responsible for all payment obligations for purchases of media and the utilization of data and services from data providers and media providers.
4. Intellectual Property and Deliverables
4.1. Background IP. Except for the license rights under Section 5 (Licenses), neither Party will own or acquire any right, title, or interest to the other Party’s Background IP.
4.2. Developed IP. Deliverables. Unless expressly stated otherwise in a SOW, as between the Parties, excluding any Client’s Background IP or Confidential Information that may be included in the deliverables, Notice U Marketing, Inc. owns all rights, title, and interest in and to the deliverables, including any Developed IP that Notice U Marketing, Inc. includes in the deliverables. Title to the deliverables does not transfer to Client upon delivery. The Client has no right or license with respect to any deliverables except as expressly licensed under Section 5 and subject to the restrictions set forth in Section 5.
5. Licenses
5.1. Client Background IP. Should the Client permit Notice U Marketing, Inc. to use any of Client’s Background IP to provide the Client with services or deliverables, then the Client hereby grants to Notice U Marketing, Inc. a limited, non-exclusive, non-transferrable, royalty-free, fully-paid, worldwide license (with the right to sublicense to its delegates and subcontractors authorized by the Client) to do the following, during the term of the applicable SOW, solely for the purpose of, and only to the extent needed for performing the services and providing the deliverables:(a) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Background IP and Developed IP;(b) make, use, and import such Background IP and Developed IP; and (c) use Brand Features provided by the Client.
5.2. License of Notice U Marketing, Inc.’s Background IP, Developed IP, and Deliverables. Subject to and conditioned upon the Client’s payment of all amounts owed and compliance with and performance in accordance with all other terms and conditions of the Agreement, Notice U Marketing, Inc. hereby grants the Client a limited, royalty-free, non-transferrable, non-sublicensable, non-exclusive, perpetual, worldwide license to do the following:(a) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use the Developed IP and Deliverables solely for the Authorized Purpose; (b) reproduce, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise use such Background IP in connection with the Deliverables and Developed IP; and (c) make, use, sell, offer for sale, import, export any component of, and otherwise dispose of such Background IP in connection with the Deliverables and Developed IP Intellectual Property in the Deliverables solely to use, reproduce, display, and internally distribute the Deliverables for the purpose of implementing Services for Client.
5.3. License Restrictions. Unless otherwise agreed in writing by Notice U Marketing, Inc., the Client’s license is subject to the following restrictions:(a) For any software that Notice U Marketing, Inc. provides to the Client in object code form, the Client shall not reverse engineer, decompile, disassemble, or otherwise reduce all or any part of the software to human-readable or non-binary form;(b) Client shall not distribute, disclose, assign, sublicense, or otherwise transfer the Deliverables to any Third Party (unless Notice U Marketing, Inc. consents in writing to the transfer on a case-by-case basis);(c) Client shall not use the Deliverables to provide Services to Third Parties, build competitive products or Services; and(d) Client shall not remove or alter any copyright, trademark, trade name, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Deliverables or that may be displayed during operation of the Deliverables.
5.4. Brand Features. Subject to the terms and conditions of the Agreement, the Client grants to Notice U Marketing, Inc. a nonexclusive, non-royalty bearing, and non-sublicensable license to (a) use as necessary to provide services and; (b) include the Client’s Brand Features in presentations and marketing materials.
Other than the limited license set forth in the preceding sentence, Notice U Marketing, Inc. has no rights in Client’s Brand Features. The Client retains all right, title, and interest in the Client’s Brand Features.
6. Client’s Responsibilities
6.1. Consents. The Client is responsible for any consents and notices required to permit the Client’s use and receipt of the Services.
6.2. Cooperation. Notice U Marketing, Inc. may request that the Client provide Notice U Marketing, Inc. with reasonable assistance and cooperation (any such request, a “Request”), including providing Notice U Marketing, Inc. with any information, resources, or network or account access that are necessary for Notice U Marketing, Inc. to perform services.
6.3. Effect of Client’s Delay. In the event that the Client does not respond to a request from Notice U Marketing, Inc., its subcontractor(s), or its vendor(s), or other agents in a timely manner or if the Client’s response to a request is not adequate for Notice U Marketing, Inc. to act upon providing service, Notice U Marketing, Inc. may do any of the following:(a) use alternative procedures to provide the Client with service in accordance with the applicable SOW, (b) extend all due dates or completion dates originally set forth in the SOW by the length of the Client caused delay, (c) adjust the service fees set forth in the SOW to the extent that the failure of response caused in increasing the spending of more time and / or resources than initially anticipated, (d) terminate the affected SOW and, in addition to any fees due, additionally charge the Client at Notice U Marketing, Inc.’s current and standard hourly rate for time spent attempting to perform the delayed service(s).
6.4. Compliance with Policies and Laws. The Client shall use services in compliance with all applicable Policies (as such Policies may be updated from time to time) and at all times the burden of proof in establishing such compliance remains with the Client. The Client shall use services in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs, including applicable Internet advertising industry guidelines.
6.5. The Client agrees that for all purchases made on its behalf, Notice U Marketing, Inc. shall be held liable only for those payments for those purchases that paid and cleared from the Client to it; otherwise, the Client agrees to be solely responsible and liable to media and vendors for owing amounts.
6.6. The Client shall obtain, at its own expense, all rights necessary to use Third Party products and the Client acknowledges that Notice U Marketing, Inc. is not the licensor or sub-licensor of any Third-Party products. Notice U Marketing, Inc. may rely on all Client decisions and the Client approvals with regard to services communicated to Notice U Marketing, Inc.
7. Representations and Warranties.
7.1. Mutual. Each Party hereby represents and warrants that it has full power and authority to enter into and fulfill its obligations under this Agreement.
7.2. Client. Client hereby represents and warrants that:
(a) Information and business decisions. Notice U Marketing, Inc. may rely in good faith on all information and business decisions communicated to Notice U Marketing, Inc. by the Client, Client’s employees, or Client’s contractors. Notice U Marketing, Inc. will not be responsible for any loss or other obligations arising from that reliance.
(b) Access. The Client has established adequate data and information protection policies, standards, and guidelines to protect their data and information.
Notice U Marketing, Inc. will not be liable for any damages, claims, or liabilities that arise as a result of the inadequacy of the Client’s business control and information protection systems, policies, standards and guidelines.
7.3. Notice U Marketing, Inc. Notice U Marketing, Inc. represents and warrants that: (a) Performance. Notice U Marketing, Inc.’s performance of services under this Agreement will be within generally accepted professional quality and performed with reasonable skill and care consistent with generally accepted industry standards. All Personnel performing services have the requisite skills, experience, and qualifications. (b) Compliance with Laws. In connection with this Agreement, Notice U Marketing, Inc. and its personnel will comply with all applicable laws and regulations. All services (and any advertisements purchased in connection therewith) are provided AS-IS, WITH ALL FAULTS and AS AVAILABLE.
7.4. Disclaimers.
(a)Except for the warranties set forth in this section 7, both Parties hereby disclaim any and all other warranties and representations, either expressed or implied, including but not limited to warranties of merchantability, fitness for any purpose, title and non-infringement. (b) In particular, Notice U Marketing, Inc. makes no representation or warranty regarding the results of services, the revenue or performance of sites, campaigns, promotions, events, and other, or that any software or items furnished by Notice U Marketing, Inc. under this agreement will be free from bugs, errors, defects, viruses, or deficiencies, or will operate continuously and uninterrupted or error-free. Without limiting the foregoing, Notice U Marketing, Inc. makes no representation or warranty that services or deliverables will meet the Client ’s requirements or expectations and all services provided by Notice U Marketing, Inc. pursuant to this Agreement are provided “as is” and “with all faults” and “as available.” It is specifically understood that Notice U Marketing, Inc. does not represent or guarantee that the services provided under this Agreement will be uninterrupted, timely, secure or error free. No advice or information, whether oral or written, obtained by the Client from Notice U Marketing, Inc., its licensor(s), or any affiliates will create any warranty, representation, or guarantee not expressly stated in this Agreement. (c) Software is provided “as is,” without warranty of any kind, expressed or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non-infringement. In no event shall the authors or copyright holders be liable for any claim, damages, or other liability, whether in an action of contract, tort, or otherwise, arising from, out of or in connection with the software or the use or other dealings in the software.
7.5. Non-Exclusivity. Nothing herein restricts or prohibits Notice U Marketing, Inc.’s right to use concepts, techniques, products, anonymized data, or know-how used or developed in the course of performing services under this Agreement or permitting the Client’s use of software in providing services and products to others. Without limiting the foregoing, nothing herein precludes Notice U Marketing, Inc. from providing, and the Client hereby acknowledges that Notice U Marketing, Inc. will be permitted to provide, services that are the same or similar to the services and/or deliverables provided hereunder, and Notice U Marketing, Inc. may independently develop, acquire, or license materials, anonymized data or programs that are similar to those described within this Agreement, to other companies on a non-exclusive basis.
8. Confidential Information, Publicity, Access
8.1. Definitions. “Confidential Information” means information that one Party (or an affiliate) discloses to the other Party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a Third Party without confidentiality obligations or becomes public through no fault of the recipient. Each Party’s Background IP is Confidential Information. The Developed IP and Deliverables are Confidential Information of Notice U Marketing, Inc.
8.2. Confidentiality Obligations. The recipient will not disclose the discloser’s Confidential Information, except to employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the Confidential Information only to exercise rights and fulfill obligations under this Agreement. The recipient may disclose Confidential Information when legally compelled by a court or other governmental authority. To the extent permitted by law, recipient will promptly provide the discloser with sufficient notice of all available details of the legal requirement and reasonably cooperate with the discloser’s efforts to challenge the disclosure, seek an appropriate protective order, or pursue such other legal action, as the discloser may deem appropriate. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
8.3. Existence and Terms of the Agreement. The existence and terms of this Agreement and all SOWs are Confidential Information of each party. Notwithstanding the foregoing, Notice U Marketing, Inc. may disclose the existence and terms of the Agreement and all SOWs (a) to the extent necessary to enforce its rights under this Agreement and all SOWs and; (b) to its prospective or current investors or other financing providers.
8.4. No Rights. Except for the limited rights under this Agreement, neither Party acquires any right, title, or interest in the other Party’s Confidential Information.
8.5. No Publicity. Neither Party may make any public statement regarding this Agreement without the other Party’s written approval.
8.6. Access to Information Systems. Access, if any, to Client information systems is granted to perform services. Access is subject to the Client’s business control and information protection policies, standards, and guidelines as may be modified from time to time and as communicated to Notice U Marketing, Inc.
8.7. After products, projects and other deliverables have made their way into the marketplace, the Client authorizes and allows Notice U Marketing, Inc. to use those and any accompanying results as testimony, portfolio, publicity, and proof of performance.
9. Independent Contractors, Non-Solicitation.
9.1. The Parties are independent contractors, and nothing herein will be deemed to cause an agency, joint venture, or partnership between the Parties, or as creating or establishing the relationship of employer and employee between the Client and either Notice U Marketing, Inc. or any employee or agent of Notice U Marketing, Inc. Neither Party has the authority to bind the other to any Third Party. Each of Notice U Marketing, Inc. and the Client assumes complete responsibility for obligations under federal and state employers’ liability, workmen’s compensation, social security, unemployment insurance, occupational safety and health administration laws, and other federal, state and local laws with respect to its own employees.
9.2. Non-Solicitation of Employees. Without the prior written consent of the other Party, neither Party (on its own behalf or on behalf of any other person, firm or entity) shall, during the term of this Agreement and for a one-year period following termination or expiration hereof, solicit or cause to be solicited, the employment of, or employ, any employee of the other Party or any person or entity performing obligations hereunder on behalf of or under the direction of such party, provided such relationship is or should reasonably be known to the Party making such solicitation, and further provided that neither Party has any liability hereunder in connection with soliciting or employing persons through non-specific advertisements made in general circulation publications.
10. Indemnification.
10.1. Obligations. Each Party (the “Indemnifying Party”) will defend and indemnify the other Party and its officers, directors, employees and agents (each, an “Indemnified Party”) from all Third Party claims or liabilities (including reimbursement for reasonable outside attorneys’ fees and disbursements) arising out of or related to the Indemnifying Party’s (a) breach or alleged breach of this Agreement or (b) infringement of a Third Party’s U.S. patent, trademark, trade secret or copyright in connection (i) with respect to Notice U Marketing, Inc., software and other technology used by Notice U Marketing, Inc. to provide services hereunder, and (ii) with respect to the Client, the creative, technology, data, or other materials provided by the Client to Notice U Marketing, Inc. or otherwise provided and utilized by the Client in connection with services hereunder (the indemnification obligation of each party described in this clause (b), the “IP Infringement Obligation”).
10.2. Exclusions. Notice U Marketing, Inc.’s IP Infringement Obligation will not apply to claims to the extent arising from (i) the Client’s use of service in violation of the Agreement; (ii) the combination, operation or use of service(s) with any product or service not provided or authorized in writing by Notice U Marketing, Inc.; or (iii) compliance with designs or instructions provided by the Client. The Client’s IP Infringement Obligation will not apply to claims to the extent arising from Notice U Marketing, Inc.’s provision of service(s) in violation of this Agreement.
10.3. Process. The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the Third Party claims (except that failure of the Indemnified Party to promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure); (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may, at its expense, join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (a) involves only the payment of money damages by the Indemnifying Party and (b) includes a complete release of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).
10.4. Options in Response to IP Infringement Claims. If a service or deliverable becomes, or in Notice U Marketing, Inc.’s reasonable opinion, is likely to become the subject of an intellectual property infringement claim, then Notice U Marketing, Inc. will promptly notify the Client and, at its sole option and expense, may suspend provision of the applicable service and either: (a) procure the right to continue providing the service or deliverable as contemplated by the Terms; (b) modify the service to render it non-infringing without adversely affecting use of such service; or (c) replace the service or deliverable with a functionally equivalent, non-infringing service. If the above options are not commercially practicable, either Party may terminate the SOW(s) for the services or deliverables impacted.
10.5. Remedy. Without affecting either Party’s termination rights and to the maximum extent permitted by law, Section 10 of this MPSA states the sole liability of the Indemnifying and the sole remedy of the Indemnified Party, with respect to any Third Party claim arising out of the Indemnifying Party’s breach of this Agreement or intellectual property infringement.
11. Limitations of Liability.
11.1. Limitations of Remedies. In the event of a breach of Notice U Marketing, Inc.’s warranty under Sections 7.3 (a) or 7.3(b), Notice U Marketing, Inc., at its option and expense, shall promptly take one of the following actions: (i) re-performance or re-delivery of the affected services or deliverables or (ii) refund of all fees paid for such defective services or deliverables.
11.2. Limitations. EXCEPT FOR (A) INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THE AGREEMENT AND (B) BREACHES OF SECTION 8 (CONFIDENTIALITY) OF THESE TERMS, NEITHER PARTY WILL BE LIABLE UNDER THE AGREEMENT FOR LOST REVENUES, LOSSES, OR EXPENSES RELATED TO SUCH LOST REVENUES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
11.3. Exceptions. EXCEPT FOR (A) INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES UNDER THE AGREEMENT, (B) BREACHES OF SECTION 8 (CONFIDENTIALITY), (C) INTENTIONAL MISCONDUCT, (A – C, “MAJOR DAMAGES”), (D) AMOUNTS OWED AND PAYABLE UNDER THE AGREEMENT, NEITHER PARTY WILL BE LIABLE UNDER THE AGREEMENT FOR MORE THAN THE SUM OF SERVICE FEES PAID TO SUCH PARTY UNDER THE AGREEMENT DURING THE 12 MONTHS BEFORE THE CLAIM ARISES.
11.4. Major Damages. FOR MAJOR DAMAGES, NEITHER PARTY WILL BE LIABLE UNDER THE AGREEMENT FOR MORE THAN ONE MILLION U.S. DOLLARS.
11.5. Third Parties. Client acknowledges that media, services, platforms, software, vendors, and others use in connection with the services that Notice U Marketing, Inc. delivers to the Client have their own terms of use, policies, rules, regulations, and systems which Notice U Marketing, Inc. has no say in, responsibility for, or control over. Notice U Marketing, Inc. and the Client may or may not be equally subject to these policies. Notice U Marketing, Inc. shall use reasonable efforts to prevent any loss to the Client by virtue of failure of proper performance by any Third Party, but Notice U Marketing, Inc. is not responsible or liable to the Client for any failure by that Third Party. If non-performance by a subcontractor or other Third Party causes a failure on the part of Notice U Marketing, Inc. to perform services for the Client, Notice U Marketing, Inc. shall reimburse the Client for all amounts that Notice U Marketing, Inc. actually recovers from the Third Party for the portion of services applicable to Client.
11.7. CLIENT ACKNOWLEDGES AND AGREES THAT THE NEGATION OF DAMAGES AND THE LIMITATION OF LIABILITY HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN UNDERLYING THIS AGREEMENT AND REFLECT A FAIR ALLOCATION OF RISK. THE SERVICES WOULD NOT BE PERFORMED, AND THE SOFTWARE, DELIVERABLES, AND KNOW-HOW WOULD NOT BE CREATED AND/OR PROVIDED, WITHOUT SUCH LIMITATIONS.
12. Term, Termination, and Suspension.
12.1. Term.
(a) The term of this MPSA (“Term”) begins on the Effective Date and continues until terminated by either party as set forth below.
(b) The term of each SOW will be set forth in the applicable SOW. In the event the term of an SOW extends beyond the termination or expiration of this MPSA, this MPSA will continue in full force and effect with respect to such SOW until the termination or expiration thereof.
12.2. Termination.
(a) Either party may terminate this MPSA upon giving thirty (30) days’ written notice to the other party.
(b) Either party may terminate an SOW upon notice with immediate effect if the other Party is in material breach of this MPSA or the applicable SOW:
(i) where the breach is incapable of remedy
(ii) where the breach is capable of remedy and the party in breach fails to remedy that breach within thirty days (30) after receiving notice from the other Party.
(c) If Notice U Marketing, Inc. is unable to provide a service due to any changes in law or regulations, Notice U Marketing, Inc. may terminate the applicable SOW related to such service upon written notice to the Client.
(d) If any Third Party ceases or changes any business or products on which the services are based, either Party may terminate immediately without penalty, the affected SOWs related to such service upon written notice to the other Party.
12.3. Effect of Termination.
(a) Termination of one or more SOWs will not affect the Parties’ rights and obligations under any other SOWs executed by the Parties prior to such termination or expiration, and all such other SOWs will remain in full force and effect unless and until terminated in accordance with these terms.
(b) If either Party terminates this MPSA and/or any SOW, subject to Section 6.3, Notice U Marketing, Inc. will refund to the Client a prorated amount of any prepaid fees for any unperformed services, and the Client will pay to Notice U Marketing, Inc. for services performed and reimburse Notice U Marketing, Inc. for all expenses incurred up to the date of termination in accordance with Section 3.1.
(c) If the Client terminates any SOW providing for a fixed fee after Notice U Marketing, Inc. has commenced performing Services under that SOW, then upon termination the Client will be obligated to pay Notice U Marketing, Inc. a portion of the fixed fee based upon the proportion of the amount of work completed under the SOW in relation to the total amount of work expected to be required to complete the SOW. Any discount provided under such SOW is rescinded.
13. Miscellaneous.
13.1. Changes to the services or this Agreement. Notice U Marketing, Inc. and Google may modify URLs referenced in this Agreement or in an order form and the content within such URLs from time to time. Any modification of the URLs will be available at the relevant URL (or a different URL that a vendor or media may provide from time to time.) Changes will not apply retroactively and will become effective thirty days (30) after they are posted, except that changes to URL references will be effective immediately.
13.2. Assignment and Successors. Neither party may assign its rights or obligations under this Agreement to any other person or entity except under the following circumstances: (i) with the express written consent of the other Party, which shall not be unreasonably withheld; (ii) to an Affiliate; or (ii) to the surviving entity or purchaser in connection with a merger, stock transfer, asset transfer, or other corporate restructuring or transaction. Any attempted assignment or delegation in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure solely to the benefit of the Parties and their respective successors and assigns.
13.3. Conflicting Terms. If there is a conflict between this MPSA and a term of an SOW, the term of this MPSA will prevail. Notwithstanding the foregoing, an SOW may amend certain terms of this MPSA by specifically referencing the affected term, and such amendment will only apply to that SOW.
13.4. Entire Agreement. The Agreement sets out all terms agreed between the Parties and supersedes all other agreements between the Parties relating to its subject matter. In entering into the Agreement neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement.
13.5. Force Majeure. Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
13.6. Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT WILL BE GOVERNED BY NEVADA LAW AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF CLARK COUNTY, NEVADA, USA. THE PARTIES CONSENT TO PERSONAL JURISDICTION AND WAIVE ALL OBJECTIONS TO PROPER VENUE IN THOSE COURTS.
13.7. Notices. All notices of termination or breach must be in English, in writing, and addressed to the other Party’s address listed on the first page of this MPSA. All other notices must be in English, in writing, and addressed to the other Party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
13.8. No Agency. The Agreement does not create any agency, partnership, or joint venture between the parties.
13.9. No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
13.10. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
13.11. Severability. If any term (or part of a term) of this Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
13.12. Subcontractors. Either Party may subcontract any of its obligations under this Agreement, without the written consent of the other Party. Each Party is liable for the acts and omissions of its subcontractors.
13.13. Approvals. The Parties agree that whenever this Agreement calls for written request or written approval to be provided by either party, unless otherwise expressly stated that e-mail is not acceptable, such request or approval may be provided via e-mail.
13.14. Negative Notification Confirmation. The Parties agree that whenever the SOW, Agreement or a request calls for written disapproval to be provided by either Party, unless the expressly stated disapproval is received in e-mail or other form of written communication prior to service commencing, services will be rendered and invoiced in accordance with Section 3.1.
13.15. Equitable Relies. Nothing in the Agreement will limit a Party’s ability to seek equitable relief; except that the Client will not seek, in a proceeding filed during the term or for one year after the term, an injunction or an exclusion order of any of the services or any portion of the services based on patent infringement.
13.16. Survival. Notwithstanding termination or expiration of the Agreement, any provisions of the Agreement that by their nature are intended to survive, will survive termination including, but not limited to: Sections 3 (Payment), 4 (Intellectual Property and Deliverables), (Confidential Information; Publicity; Access), 7 (Representations and Warranties), 10 (Indemnification), 11 (Limitation of Liability), and 13 (Miscellaneous).