Master Service Agreement

Marketing Services Agreement

 

This Marketing Services Agreement, dated as of DATE (this “Agreement“), is entered into between Results Repeat, LLC, a Pennsylvania limited liability company, located at 24 Veterans Square, Media, PA 19063 (the “Service Provider“), and CLIENT NAME, a STATE OF ORGANIZATION TYPE OF ENTITY, located at ADDRESS (“Client“, and together with Service Provider, the “Parties“, and each, a “Party“).

WHEREAS, Service Provider is in the business of providing online marketing services, including search engine optimization (SEO), promotional microsite design, development, hosting, and analytics, social media marketing and management, , pay-per-click advertising (PPC), link building, reputation management, online competitive analysis, display advertising, and email marketing. 

WHEREAS, Client is in the business of DESCRIPTION OF BUSINESS and sells PRODUCT/SERVICE.

WHEREAS, Client wishes to retain Service Provider to provide the services set forth in the attached Statement of Work (“SOW”) and any future SOWs (the “Services“).

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Service Provider Services and Responsibilities.

 

1.1. Service Provider Services.

Service Provider shall use commercially reasonable efforts to provide to Client the services (the “Services“) set forth in one or more statements of work to be mutually agreed upon by the Parties (each, a “Statement of Work” or “SOW”). The initial accepted SOW is attached hereto as Exhibit A. Additional Statements of Work substantially in the same form as the SOW attached hereto shall be deemed accepted and incorporated into this Agreement only if signed by Client and countersigned by the Service Provider Contract Manager (as defined in 1.3(a)(i), below). Service Provider shall provide the Services in accordance with the terms and subject to the conditions set forth in the relevant SOW and this Agreement.

1.2. Time of the Essence.

Subject to Client’s timely cooperation in accordance with 2.1(c), Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required.

1.3. Service Provider Contract Manager and Personnel.

(a)  Subject to the prior written approval of Client, not to be unreasonably withheld or delayed, Service Provider shall:

(i)  appoint an employee to serve as the primary contact with respect to this Agreement who will have the authority to act on behalf of the Service Provider in connection with matters pertaining to this Agreement (the “Service Provider Contract Manager“);

(ii)  hire, supervise, direct, and discharge all employees and Permitted Third Party Service Providers (as defined in 1.3(e) below) (collectively, the “Service Provider Personnel“) necessary to perform the Services, each of whom shall be suitably skilled, experienced and qualified; and 

(iii)  upon reasonable request of Client, promptly replace the Service Provider Contract Manager and any other Service Provider Personnel. 

(b)  Service Provider shall comply with all applicable laws in its performance of the Services.

(c)  Service Provider shall be responsible for the payment of all compensation owed to the Service Provider Personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.

1.4. No Exclusivity.

Service Provider retains the right to perform the same or similar type of services for third parties, including third parties in Client’s industry, during the Term of this Agreement.

1.5. Meetings with Client.

On Client’s reasonable request, the Service Provider Contract Manager shall attend, and shall cause any relevant Service Provider Personnel to attend, telephonic quarterly meetings with Client Contract Manager (or its designee) to discuss the Services or the Campaign. 

1.6. Restrictions on Expenditures.

Subject to 4.1, Service Provider shall not incur any cost or make any expenditure in excess of $100 in connection with the Campaign or any Service without Client’s prior written approval. 

1.7. Compliance with Laws.

Service Provider shall at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder, except to the extent that failure to comply could not, in the aggregate, reasonably be expected to have a material adverse effect on its ability to comply with its obligations under this Agreement. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

1.8. Compliance with Industry Standards.

Service Provider shall comply with digital marketing industry standards and self-regulatory guidelines and best practices in providing the Services.

 

2. Client Obligations and Responsibilities.

 

2.1. Client Obligations and Responsibilities.

Client shall: 

(a) Appoint and, in its reasonable discretion, replace a Client representative to serve as the primary contact with respect to this Agreement, which representative will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager“).

(b) Provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials“) as Service Provider may request in order to carry out the Services in a timely manner. 

Client and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, original works of authorship and related copyrights, and any other intangible property (collectively “Intellectual Property“) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing. 

(c) Respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement.

2.2. Client Approval.

Client shall: 

(a) Appoint and, in its reasonable discretion, replace a Client representative to serve as the primary contact with respect to this Agreement, which representative will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager“).

(b) Provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials“) as Service Provider may request in order to carry out the Services in a timely manner. 

Client and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, original works of authorship and related copyrights, and any other intangible property (collectively “Intellectual Property“) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing. 

(c) Respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement.

 

3. Intellectual Property Rights; Ownership.

 

3.1. License to Certain Client Intellectual Property.

(a)  Subject to and in accordance with the terms and conditions of this Agreement, Client grants Service Provider and its affiliates and Permitted Third Party Service Providers a limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license during the Term to use Client’s Intellectual Property solely to the extent necessary to provide the Services to Client. 

(b)  Client grants Service Provider a perpetual limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license to use any non-confidential Deliverables as part of Service Provider’s portfolio of work, as marketing material on Service Provider’s website and in other promotional materials.

(c)  Client grants no other right or license to any Client Intellectual Property to Service Provider by implication, estoppel, or otherwise. Service Provider acknowledges that Client owns all right, title, and interest in, to, and under the Client’s Intellectual Property and that Service Provider shall not acquire any proprietary rights therein. With the exception of the license set forth in Section 3.1 (c), any use by Service Provider or any affiliate, employee, officer, director, partner, shareholder, agent, attorney, third-party advisor, successor or permitted assign (collectively “Representatives“) of Service Provider of any of Client’s Intellectual Property and all goodwill and other rights associated therewith shall inure to the benefit of Client. 

3.2. Ownership of and License to Deliverables.

(a)  Except as set forth in 3.2(c), Client is and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, and other materials that are delivered to Client hereunder by or on behalf of Service Provider in connection with the Campaign or developed or created in the course of performing the Services, including all Intellectual Property therein (collectively, the “Deliverables“). Service Provider acknowledges and will cause Service Provider Personnel to agree that with respect to any copyrights in any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, Client shall own the copyrights in such Deliverables as a “work made for hire” for Client. With respect to any of the Deliverables that do not constitute a “work made for hire,” Service Provider hereby irrevocably assigns and shall cause the Service Provider Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables. The Service Provider shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.

(b)  Upon the reasonable request of Client, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables. 

(c)  In the course of providing the Services, Service Provider will be using certain pre-existing materials, in each case developed or acquired by Service Provider prior to the commencement or independently of this Agreement (collectively, the “Pre-Existing Materials“). Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. Service Provider hereby grants Client a perpetual, limited, royalty-free, non-transferable (except in accordance with n 11.9), non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.

(d)  In the course of providing the Services, Service Provider may be using certain third-party materials that are not proprietary to Service Provider (collectively, the “Third-Party Materials“), Client shall have a limited, royalty-free, non-transferable (except in accordance with 11.9), non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, estoppel, or otherwise.

 

4. Fees and Expenses; Payment Obligations.

 

4.1. Fees and Expenses.

(a)  In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the Fee Schedule made part of the applicable Statement of Work. Service Provider reserves the right to amend such Fee Schedule upon 60 days’ notice to Client. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this 4 shall constitute acceptance of the Services. Unless otherwise provided in the applicable Statement of Work, said fees will be invoiced monthly and shall be payable within 30 days of receipt by the Client of an invoice from Service Provider but in no event more than 30 days after completion of the Services performed pursuant to the applicable Statement of Work.  In addition to any other remedies available to Service Provider in this Agreement or at law, Client agrees to pay a late fee equal to 10% of the invoiced amount for any payment not made within 5 days of its due date.

(b)  Client shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Statement of Work within 15 days of receipt by the Client of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation. Service Provider may request a retainer from Client to cover expenses. Any unused retainer shall be returned to Client within 30 days of the expiration or termination of the Agreement.

(c)  Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.

(d)  Except for invoiced payments that the Client has successfully disputed (meaning Service Provider has acknowledged the dispute and agreed in writing to amend the invoice) , all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under Pennsylvania law, calculated daily and compounded monthly. Client shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Client fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof.

 

5. Representations, Warranties, and Certain Covenants.

 

5.1. Service Provider represents, warrants, and covenants to Client that:

(a)  it shall materially comply with, and ensure that all Service Provider Personnel and Permitted Third Party Service Providers comply with, all commercially-reasonable: specifications, rules, regulations, and policies of Client that are included in any relevant SOW; and

(b)  Client will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind.

5.2. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY WARRANTY THAT ANY OF THE DELIVERABLES COMPLY WITH THE THEN-CURRENT REQUIREMENTS OF THE ADA, ADAAA, OR ANY STATE OR LOCAL REQUIREMENTS RELATED TO DISABILITY. CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH THESE LAWS AND REGULATIONS.

 

6. Indemnification.

 

6.1. Client Indemnification Obligations.

Client shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Service Provider Indemnified Party“), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“) , that are incurred by Service Provider Indemnified Party arising out of or resulting from any third-party Claim alleging: 

(a)  breach by Client or its Personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement; 

(b)  negligence or more culpable act or omission of Client or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and 

(c)  that any Client Materials or Client Intellectual Property or Service Provider’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party arising under the laws of the United States.

6.2. Service Provider Indemnification Obligations.

Service Provider shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Client Indemnified Party“), from and against any and all Losses, arising out or resulting from any third-party Claim alleging: 

(a)  breach by Service Provider or its Personnel of any obligations set forth in this Agreement; 

(b)  negligence or more culpable act or omission of Service Provider Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and

(c)  that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property of a third party arising under the laws of the United States.

6.3. Exceptions and Limitations on Indemnification.

(a)  Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from the other Party’s:

(i)  Willful, reckless or negligent acts or omissions; or

(ii)  bad faith failure to comply with any of its obligations set forth in this Agreement. 

(b)  Notwithstanding anything to the contrary in this Agreement, Client shall have no obligations to indemnify or defend Service Provider or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to: 

(i)  any Deliverables or any instruction, information, designs, specifications, or other materials provided by Service Provider in writing to Client;

(ii)  Service Provider’s use of any Client Materials or Client Intellectual Property in combination with any materials or equipment not supplied to Service Provider or specified by Client in writing, if the infringement would have been avoided by the use of the Client Materials or Client Intellectual Property not so combined; or 

(iii)  any modifications or changes made to the Client Materials or Client Intellectual Property by or on behalf of any person other than Client or Client Personnel. 

(c)  Notwithstanding anything to the contrary in this Agreement, Service Provider shall have no obligations to indemnify or defend Client or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to: 

(i)  any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Service Provider; 

(ii)  Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Service Provider not so combined; or 

(iii)  any modifications or changes made to the Deliverables by or on behalf of any person other than Service Provider or Service Provider Personnel. 

6.4. Indemnification Procedures.

A party seeking indemnification under this 6 (the “Indemnified Party“) shall give the Party from whom indemnification is sought (the “Indemnifying Party“): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.

6.5. EXCLUSIVE REMEDY.

EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN 11.8, THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 6. 

 

7. Limitation of Liability.

 

7.1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

7.2. MAXIMUM LIABILITY.

EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

8. Insurance.

 

During the Term and for a period of 12 months thereafter, each Party shall, at its own expense, maintain and carry in full force and effect adequate insurance to provide for full satisfaction of such Party’s obligations under this Agreement.

 

9. Confidentiality and Non-Solicitation.

 

9.1. Confidentiality.

From time to time during the Term, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall, for 5 years from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives. 

9.2. No Hiring of Employees or Engagement of Contractors.

Client shall not, during the Term of this Agreement and for a period of one (1) year after the termination thereof, without the written consent of Service Provider (a) hire or employ any employee or other person associated with Service Provider on Client’s behalf or that of any individual, corporation or other entity (“Hiring”); or (b) induce or attempt to induce any employee or other person associated with Service Provider to leave the employ of or cease doing business with Service Provider (“Inducing”). If Client violates this agreement by Hiring or Inducing, Client agrees to pay Service Provider liquidated damages in an amount equal to the larger of: (i) the dollar amount paid by Client to Service Provider over the twelve-month period immediately preceding Client’s  Hiring or Inducing in violation of this section, or (ii) payable to Service Provider over the same period.  Such payment is liquidated damages and not a penalty.  

 

10. Term; Termination.

 

10.1. Term

The term of this Agreement commences on the Effective Date and continues for as long as there is an active SOW in effect, unless it is earlier terminated in accordance with the terms of this Agreement (the “Term“).

10.2. Termination for Cause.

(a)  Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party“) if the Defaulting Party: 

(i)  materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure“), which is separately addressed in 10.2(b)), the Defaulting Party does not cure such breach within 15 days after receipt of written notice of such breach;

(ii)  becomes insolvent or is generally unable to pay its debts as they become due;

(iii)  files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; 

(iv)  makes or seeks to make a general assignment for the benefit of its creditors;

(v)  applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

(vi)  is dissolved or liquidated; or 

(vii)  is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event that lasts for more than 30 consecutive days. 

(b)  Service Provider may terminate this Agreement, effective upon written Notice to Client if: 

(i)  a Payment Failure by Client continues for 15 days after Client’s receipt of written notice of nonpayment; or

(ii)  within any 6-month period, 2 or more Payment Failures occur.

10.3. Termination without Cause.

(a)  Client may terminate this Agreement or any SOW on 90 days’ prior written Notice to Service Provider. Client will reimburse Service Provider for all approved, non-cancellable expenses accrued by Service Provider to perform the Services. No purported termination will occur unless Client has fully paid all outstanding invoices as of: (i) the date Client provides written notice of termination to Service Provider; and (ii) the effective date of such termination. Client’s failure to comply with the foregoing shall be deemed a material breach of this Agreement.

(b)  Service Provider may terminate this Agreement or any SOW on 90 days’ prior written Notice to Client.  Service Provider and Client shall meet, as soon as practicably possible after Client’s receipt of such notice of termination, and mutually agree upon a wind-down schedule for the Services. 

10.4. Effect of Expiration or Termination.

(a)  Expiration or termination of this Agreement will not affect any rights or obligations that:

(i)  are to survive the expiration or earlier termination of this Agreement; and

(ii)  were incurred by the Parties prior to such expiration or earlier termination. 

(b)  Upon expiration or termination of this Agreement for any reason, Service Provider shall: 

(i)  promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials; and

(ii)  provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate Service Provider.

(c)  Subject to 10.4(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.

 

11. Miscellaneous.

 

11.1. Entire Agreement.

This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

11.2. Survival.

Subject to the limitations and other provisions of this Agreement, (a) Section 5 (Representations, Warranties, and Certain Covenants) shall survive the expiration or earlier termination of this Agreement for a period of 12 months after such expiration or termination; and (b) 4 (Fees and Expenses; Payment Obligations), 6 (Indemnification), 7 (Limitation of Liability), 8 (Confidentiality), 10 (Term; Termination), and 11 (Miscellaneous), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. No lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either Party after the expiration of the applicable survival period; provided, however, that any claims asserted in good faith with reasonable specificity and in writing by Notice pursuant to 11.3 prior to the expiration of the applicable survival period are not thereafter barred by the expiration of the relevant period, and such claims survive until finally resolved.

11.3. Notices.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this 11.3.

11.4. Severability.

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11.5. Amendment and Modification.

No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party. 

11.6. Waiver.

No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

11.7. Cumulative Remedies.

All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. 

11.8. Equitable Remedies.

Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 3 or 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this 11.8. 

11.9. Assignment.

Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement to an Affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of the Party’s assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

11.10. No Third-Party Beneficiaries.

(a)  Subject to 11.10(b), this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

(b)  The parties hereby designate the Client Indemnified Parties and Service Provider Indemnified Parties as third-party beneficiaries of 6 of this Agreement having the right to enforce 6.

11.11. Choice of Law.

This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America (including its statutes of limitations) without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania,. 

11.12. Choice of Forum.

Neither Party shall commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other the courts of the Commonwealth of Pennsylvania,  sitting in Delaware County and any appellate court thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the Commonwealth of Pennsylvania, sitting in Delaware County. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

11.13. Relationship of Parties.

Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Service Provider is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.

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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

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