HEROIC EPIC Terms & Conditions
This Master Services Agreement (“Agreement”) is made as of the Effective Date provided below by and between HEROIC Holdings, LLC, a Utah limited liability corporation, having an address of 709 N. 1890 W. STE 39A Provo, Utah, 84601 (“HEROIC” or the “Provider”) and the client whose contact information and authorized signatory appear in the signature block of the associated documents (“Client”).
This Master Agreement establishes the terms and conditions applicable to Provider’s ongoing provision of software services to Client, which will be further defined and governed by one or more additional agreements, statements of work and addendums to this Master Agreement.
The following terms, when capitalized in this Master Agreement or in any document incorporated into this Master Agreement, shall have the following meanings:
2.1. Provider’s Existing IP means the tools, materials, and know-how belonging to Provider, as further described in the section entitled “Ownership & Proprietary Rights”, below.
2.2. Authorized Representative means the person or person(s) designated by Client and Provider to act on behalf of its/their respective party for all purposes under this Master Agreement and/or Addendums. The parties’ initial Authorized Representative(s) is listed in the signature block of all Agreements.
2.3. Client Content means all Client-created or Client-produced content provided to Provider.
2.4. Confidential Information means (i) any information labeled “Confidential” or otherwise designated by the party revealing such information (a “Disclosing Party”) to be confidential, and/or (ii) information that, given its type and the circumstances under which it is revealed to or otherwise obtained by the receiving party (a “Receiving Party”), the Receiving Party should reasonably know that such information is confidential. Confidential information shall not include a) information in the public domain at the time of disclosure or otherwise available to the Receiving Party other than on a confidential basis, or b) information that, after disclosure, becomes a part of the public domain by publication or otherwise through no fault of the Receiving Party or any third party under a confidential obligation with the Disclosing Party, or c) information lawfully disclosed to the Receiving party by a third party not under an obligation of confidentiality to the Disclosing Party, or d) information developed by the Receiving Party independent of the disclosures by the Disclosing Party without reliance on or use of Confidential Information of the Disclosing Party, or e) information required to be disclosed by order of any court of competent jurisdiction or other governmental authority (provided, however, that the Receiving party shall timely inform the Disclosing Party of all such legal or governmental proceedings so that the Disclosing Party may attempt by appropriate legal means to limit such disclosure, and the Receiving Party uses its best efforts to limit the disclosure and maintain confidentiality to the maximum extent possible).
2.5. Effective Date means the date which the Proposal or Master Agreement is considered to take effect.
2.6. Force Majeure means any event not within the reasonable control of the party whose performance is impacted by the event, including but not limited to lockouts, civil commotion, riot, invasion, war, threat of or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster.
2.7. Indemnified Party and Indemnifying Party will have the meaning assigned to them in the section labeled, “Indemnification”, below.
2.8. Master Agreement means this document and all proposals issued pursuant to this document, and any amendments to the foregoing in effect from time to time.
2.9. Retainer Agreement means an agreement for requested services based on a fixed, recurring rate.
2.10. Services mean those duties, obligations, products, and services described in a proposal or SOW.
2.11. Statement of Work (or SOW) means the written statement of the parties in which the obligations, duties, and services with regard to a project or service are detailed. A Statement of Work may have additional exhibits or schedules attached to it; however, to be effective, each SOW must:
2.12.1. Be dated and incorporate by reference the terms and conditions of this Master Agreement;
2.12.2. Describe the obligations of Provider and Client, including a description of the services to be provided under the SOW, and any service levels applicable to those services;
2.12.3. Specify the charges, method of payment, and schedule of payment for the services provided under the SOW; and,
2.12.4. Be signed by such party’s Authorized Representative.
2.13. Testing Period means the period of time described in the section entitled, “Acceptance Procedures”, below.
2.14. Third Party Applications shall mean any third party software or computer code which, in part or in whole, is incorporated into the Work Product.
2.15. Work Product shall mean all deliverable produced for Client pursuant to the terms of this Master Agreement.
3.1. General. Provider will provide to Client all Services described in one or multiple Proposal(s) or SOW(s). Either Client or Provider may offer a Proposal or SOW for consideration; however, neither party represents or warrants that it will agree to the terms of any Proposal or SOW that has been proposed, but not yet accepted in writing, by the parties.
3.2. Enforcement. Once a Proposal or SOW (i) has been signed by both parties and (ii) each party has received a signed version of the Proposal or SOW from the other party, the Proposal or SOW and all attachments and exhibits comprising or attached, will automatically become part of, and incorporated into, this Master Agreement.
3.3. Conflict. If the terms of an Proposal or SOW directly conflict with the terms of this Master Agreement, then the terms of this Master Agreement will control unless the Proposal or SOW specifically (i) describes the conflict and (ii) states that the language in the controls.
3.4. Subcontracting. Provider reserves the right to use one or more subcontractors to perform part or all of the Services; however, Provider guarantees and remains ultimately responsible for all work performed by its subcontractors. Any subcontractor performing work on Provider’s behalf will be required to sign a non-disclosure agreement with Provider that is no less stringent than the terms of the non-disclosure provisions of this Master Agreement, and Provider shall provide Client with copies of any such non-disclosure agreement upon Client’s written request. Provider will not subcontract any Services that are specifically and expressly designated in a Proposal or SOW as being non-delegable or non-assignable.
3.5. Non-exclusive. Client understands and agrees that the Services are provided to Client on a non-exclusive basis, and that Provider may perform the same or similar Services for, or on behalf of, Provider’s other clients. Notwithstanding the foregoing, Provider shall not perform activities for its other customers where such activities would result in Provider disseminating or revealing any of Client’s Confidential Information.
3.6. Performance. Provider will not be responsible for its failure to perform the Services timely where the failure would not have occurred but for a Force Majeure event, or where such failure was the result of the following: (i) Client’s material failure to perform its obligations under this Agreement (ii) the wrongful acts or omissions of Client, (iii) the failure of any of Client’s employees to adequately perform their tasks related to the Services, (iv) unreasonable, untimely, incomplete or inaccurate information from Client, or (v) Client’s failure to make available information, materials, software, hardware, equipment or personnel in the manner required by this Agreement or any relevant SOW (collectively, “Client Delay”). In the event that a Client Delay causes a delay in Provider’s performance, Provider and Client will work together in good faith to determine a new time period in which the delayed Services will be performed.
3.7. Changes in Law. Client shall be responsible for notifying Provider promptly of any changes in law, including Client’s regulatory requirements (if any), that may relate to Provider’s delivery or Client’s receipt of or use of the Services. In the event that such change in the law occurs, the parties shall work together to identify the impact of such change(s) on how Client receives and uses, and Provider delivers, the Services. Client shall be responsible for any fines or penalties arising from noncompliance by Client or Provider arising from Client’s failure to notify Provider as described herein. Subject to the following sentence, if a change in law prevents or delays Provider from performing its obligations under this Master Agreement, Proposal or a SOW, the parties shall develop and implement a suitable workaround until such time as Provider can perform its obligations under this Master Agreement, Proposal and/or a SOW, as the case may be, without such workaround. If a change in law, including the development or implementation of a workaround, results in Provider’s use of additional resources or an increase in Provider’s costs of providing the Services, Client shall reimburse Provider’s for such additional resources and increased costs. Provider shall not have any obligation to monitor or become aware of any laws, including Client’s regulatory requirements (if any), relating to Client’s business or its receipt or use of the Services.
3.8. Miscellaneous Work Exception. The Services may include certain miscellaneous work or services that are not explicitly or specifically described in an SOW, but which are nonetheless necessary for the successful provision of the Services.
4. PROJECT MANAGEMENT
4.1. Authorized Representative. Each party shall designate an Authorized Representative to oversee and manage the obligations and duties of that party with regard to the provision of the Services and who, from the Effective Date until replaced by the appointing party, will serve as that appointing party’s representative under this Agreement. Each Authorized Representative will have overall responsibility for managing and coordinating the performance of the appointing party’s obligations under this Agreement.
4.2. Discussions. Representatives of Client and Company shall confer as often as may be reasonably requested by either party to review the progress of the Services, discuss technical plans and performance issues, and consider any other matters related to the Services. At least once each calendar month during the Term or more often as set forth in an SOW (or as otherwise agreed to by the parties), the Authorized Representatives as well as appropriate additional personnel of each party, shall meet in person or by telephone to discuss the performance of their respective obligations during the preceding month, planned changes, staffing, completion of the Services, future performance of each party’s respective obligations and to exchange information needed for such performance.
4.3. Notice. Each party will use its best efforts to provide the other party with at least seven (7) calendar days prior written notice if the employment of an Authorized Representative is terminated or if the Authorized Representative is re-assigned to another project. In the event that a party changes its Authorized Representative, that party shall, at its own expense, educate the new Authorized Representative so the individual is adequately informed with regard to the scope and requirements of the relevant Services.
4.4. Authority. In performing its obligations under this Agreement, each party shall be entitled to rely upon any instructions, authorizations, approvals or other information provided to such party by the other party’s Authorized Representative.
5. OWNERSHIP & PROPRIETARY RIGHTS.
5.1. By Provider.
5.1.1. Existing Tools/Templates/Know-How. Notwithstanding any provision to the contrary, Provider is, and shall remain at all times, the owner of all (i) know-how discovered, produced, developed or used at any time by Provider, and (ii) all software tools, templates, reusable and/or generic codes, and related materials developed at any time by Provider generally for Provider’s business (collectively, “Provider’s Existing IP”).
5.1.2. Work Product. Until such time that Provider is paid in full for its Services under a relevant Proposal or SOW, Provider shall remain the owner and/or sole licensor of all work product and deliverables developed for Client under this Master Agreement and the relevant SOW (“Work Product”). Upon Provider’s receipt of full payment for the relevant Work Product, Provider hereby permanently assigns and transfers to Client any and all of Provider’s right, title and interest in the Work Product. The parties understand and agree that to the extent that Provider’s Existing IP ,or any Third Party Application, is incorporated into the Work Product, Client is hereby granted a non-exclusive, unlimited and perpetual right to use Provider’s Existing IP and such Third Party Application in conjunction with the Work Product, provided that Client does not remove Provider’s Existing IP or the Third Party Application from the Work Product or isolate Provider’s Existing IP or the Third Party Application from the Work Product and make any commercial use of such materials.
5.1.3. Promotion Rights. The parties agree that Provider is hereby granted a non-exclusive, perpetual, worldwide right to display and incorporate portions of the Work Product in, or as part of, Provider’s marketing materials and/or professional portfolios, as that portfolio may be offered or displayed by Provider in any medium, media or format desired by Provider (“Right of Promotion”). This Right of Promotion shall also include the right (a) to submit the Work Product on Provider’s behalf to various industry competitions relevant to Provider’s business and/or the digital marketing / advertising industry in general; provided, however, that Client is referenced in any submission as the current owner of the Work Product, and (b) to use Client’s name, trademark, and biographical information for purposes of inclusion in Provider’s professional portfolio as described herein. Other than the Right of Promotion described herein, Provider shall not use the Work Product (post-transfer to Client) for any other purpose.
5.2. By Client. Client is and shall remain the owner and/or licensor of all Client Content. Client hereby grants to Provider a non-exclusive, right to use the Client Content for the purpose of performing the Services and producing the Work Product, and for the purpose of using the Client Content as part of Provider’s Right of Promotion.
5.2.1. General. Unless specifically stated in this Master Agreement a Proposal or an SOW, nothing herein grants any license to either party under any patents or copyrights of the other party, and each party reserves all rights in its ideas, concepts, know-how, methodologies, processes, technologies, algorithms, techniques and other intellectual property of every kind and nature.
6. PAYMENT & FEES
6.1. Payment. Client shall pay for all the Services pursuant to the fee schedule listed in the relevant Proposal or SOW. If no fee schedule is listed, then fees shall be due and payable to Provider upon Client’s receipt of an invoice for such fees. Unless otherwise agreed to by the parties, all invoices are payable within ten (10) calendar days following receipt of invoice by Client.
6.2. Remedies. In the event that an invoice is not timely paid, Provider shall have the right (i) to charge interest on the unpaid amount at the rate of 18% per annum or the highest interest rate permitted by law, whichever is less, (ii) to suspend performance of its Services until such time that payment is received by Provider, it being understood that such suspension of services shall not be deemed a violation by Provider of this Master Agreement or SOW, and/or (iii) demand and receive from Client additional funds to ensure Client’s payment for future, unperformed Services. In the event that any invoice remains unpaid for a period of thirty (30) days or more following the due date, Provider shall have the right (but not the obligation) to terminate the relevant SOW or, in its discretion, all SOWs and/or this Master Agreement, and demand and receive payment from Client for all work performed by Provider under all Proposals or SOWs up to the date of termination. The remedies described in this subsection are cumulative and not exclusive, and shall not diminish or prevent Provider from exercising any other remedies available to it at equity or law.
7. TERM & TERMINATION
7.1. Term. This Agreement shall commence on the Effective Date, and continue until terminated as provided in this Master Agreement.
7.2. Termination. A SOW or Proposal may be terminated according to the terms contained in the agreement. If the agreement is silent on termination, then Client may request the termination agreement provided that Client agrees, in writing, to pay any and all costs and fees incurred and charged by Provider up to and including the date of termination, including but not limited to any and all costs, expenses, outlays and fees Provider incurs in the early termination of the agreement. With the exception of nonpayment by Client, either party may terminate a Proposal, a SOW or this Master Agreement immediately if the other party commits a material breach of under the terms of this Master Agreement, and that breach is not adequately and reasonably fixed within ten (10) days following notice of the breach.
7.3. Master Agreement Termination.
7.3.1. Mutual. The parties may mutually agree, in writing, to terminate this Master Agreement.
7.3.2. Expiration. In addition, this Master Agreement shall automatically terminate two (2) years following the last date on which Provider provides Services to Client under this Master Agreement or any SOW.
7.3.3. Without Cause. 30 day notice Either party may terminate this Master Agreement without cause by providing the other party with notice of such termination; provided, however, that on the date of termination, (a) no work under any SOW is pending or in progress, and (b) all fees due and payable to Provider have been paid by Client in full.
7.4. No Liability for Termination. If Provider terminates a SOW or this Master Agreement for any reason permitted under this Master Agreement, Provider shall not be responsible or liable to Client for any costs, fees, expenses, charges, debts or obligations incurred by Client as a result of such termination.
8. CLIENT REPRESENTATIONS & WARRANTIES
Client hereby represents and warrants the following:
8.1. All Client Content provided to Provider is accurate and belongs to Client (or is licensed by Client), and Client has the power and authority to allow Provider to use the Client Content as described in this Master Agreement or relevant Proposal or SOW;
8.2. Client’s provision of the Client Content to Provider, and Provider’s use of the Client Content as described in this Master Agreement or any Proposal or SOW, does not violate the rights (including but not limited to the intellectual property rights) of any third party;
8.3. Client has provided, and will continue to provide, accurate information to Provider including, without limitation, the nature of Client’s business, and the address where Client conducts its business;
8.4. Client shall not use the Work Product for any illegal purpose, or in a manner that infringes or tends to infringe upon the rights of any third party; and,
8.5. Client has the corporate power and authority to enter into, and be bound by, the terms of this Master Agreement.
9. PROVIDER’S REPRESENTATIONS
In addition to the representations made by Provider elsewhere in this Master Agreement, Provider
9.1. The Work Product will not infringe the intellectual property rights of any third party; provided, however, that this warranty shall not apply to the extent that any such infringement arises from or relates to Provider’s use of the Client Content;
9.2. Any Third Party Applications included in the Work Product will be disclosed to Client, and Provider has the authority to include such Third Party Applications in the Work Product;
9.3. Provider has the corporate power and authority to enter into this Agreement and to be bound by the terms contained herein.
10.1. Except as provided in this Master Agreement, neither party shall make any disclosure of the Confidential Information to anyone other than employees who have a need to know such information in connection with this Master Agreement, Proposal or SOW. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information, and require its employees to comply with these obligations.
10.2. The Disclosing Party shall remain the owner of any Confidential Information it provides to the Receiving Party. Except as otherwise provided in this Master Agreement, the Receiving Party receives no title, license or ownership interest in any Confidential Information it receives. Upon the written request of the Disclosing Party, the Receiving Party will return to the Disclosing Party all of the Disclosing Party’s Confidential Information that the Receiving Party has in its possession.
11.1. Obligations. Subject to the limitations expressly stated in this Agreement, each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party and the other party’s directors, officers, employees and agents (collectively, “Indemnified Party”), with respect to any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees) brought by a third party against the Indemnified Party, at trial and on appeal, to the extent that such action is based upon a claim that (i) if true, would constitute a material breach of any of the Indemnifying Party’s representations, warranties, or covenants hereunder, or (ii) arises out of the gross negligence or willful misconduct of the Indemnifying Party. Further, Provider shall have no obligation to indemnify Client to the extent that a claim arises from or relates to Client’s unauthorized modification of the Work Product, or Client’s use of the Work Product in violation of any Third Party Application licenses about which Provider notified Client in writing at the time that the Work Product was delivered to Client.
11.2. Procedures. In order to be indemnified under this Master Agreement, the Indemnified Party must promptly provide the Indemnifying Party with written notice of any claim which the Indemnified Party believes falls within the scope of indemnification. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that in all cases the Indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and, further, that any settlement intended to bind the Indemnified Party shall not be final without the Indemnified Party’s written consent, which consent shall not be unreasonably withheld.
12.1. Non-Patent Related Claims. Notwithstanding any provision to the contrary, under no circumstances shall the total indemnification obligation of Provider under this Master Agreement for any and all non-patent related claim(s), fees, costs, judgments, expenses and/or awards to which Client may be exposed or that are brought or entered against Client in the aggregate, exceed the greater of either (i) two (2) times the amounts paid by Client to Provider for the deliverable or project that formed the basis of the claim(s) requiring indemnification, or (ii) the amounts actually paid to Client under Provider’s insurance policy, as such amounts are be determined by Provider’s insurance carrier.
12.2. Patent Related Claims. For all patent-related claims, expenses, costs, fees (including attorneys’ fees) and losses (collectively, “Patent Claims”), Provider’s total, aggregate indemnification obligation under this Agreement shall be strictly limited to the greater of (i) one and one-half times (1.5x) the fees received by Provider under the specific SOW upon which the Patent Claims are based, or (ii) one-third (1/3) of the total revenue received by Provider from Client in the twelve (12) month period immediately preceding the first date on which Provider is notified in writing of the Patent Claims.
13. LIMITATION OF LIABILITY
Except for each party’s indemnification obligations described in this agreement and the non-solicitation & non-circumvention clause, in no event shall either party have any liability with respect to any claim arising out of or related to this master agreement for consequential, exemplary, special, incidental, or punitive damages even if the party has been advised of the possibility of such damages. In any event, the liability of either party, for any reason and upon any cause of action, shall be limited to the amount actually paid to the provider by the client for the project or sow at issue. This limitation applies to all causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability and other torts. All work product and services provided to client under this agreement are provided “as is”. Unless expressly stated in this agreement, provider does not offer and client expressly waives all warranties, including but not limited to warranties of merchantability and fitness for a particular purpose.
14. NON-SOLICITATION & NON-CIRCUMVENTION
During the term of this Master Agreement and for a period of twenty-four (24) months following the expiration or termination of this Master Agreement (the “Restrictive Period”), without written consent from the managing member of each company, Client shall not hire the Provider’s employees nor past employees, nor solicit, or knowingly induce or influence, any of the Providers employees or contractors to discontinue or reduce the scope of their employment or business relationship with such party. Client shall also not seek to by-pass, avoid nor circumvent the Provider directly or indirectly with regards to the services it currently provides or plans to provide including initiating, soliciting, negotiating with, contracting with or entering into any business transactions, agreements or undertakings with any current or past employee of Provider or company that a current or past employee of Provider has more than 1% ownership in. In case of circumvention, client agrees and guarantees to pay a legal monetary penalty that is equal to the total amount the circumvented Party should have realized in such transactions for each occurrence. In the event the Client, or an affiliated company, hires Provider’s employee(s), Client shall pay 30% of employee(s) one year salary in addition to the monetary penalty for each circumvention.
15.1. Notices. Whenever under the provisions of this Agreement, notice is required or permitted to be given to either party, such notice may be delivered by electronic mail (“email”). Email notice shall be deemed received by a party when such notice is sent to the last known email address provided to the sending party by the receiving party. Notwithstanding any provision to the contrary, however, email notice shall be effective only if the receiving party subsequently acknowledges receipt of the email notice via a return email to the sending party in which the sending party’s original email is either referenced or reproduced. Notice provided in any method other than by email shall be deemed given either when delivered personally, or by courier, or by facsimile machine with printed transmittal confirmation sheet; or, three (3) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to the party for whom it is intended with copies provided to the address set forth in this Master Agreement or to such other addresses as a party shall hereafter designate in writing to another party. Subject to the terms described herein, the parties acknowledge and agree that email and/or digital copies or electronic transmissions satisfy all “writing” requirements under this Master Agreement.
15.2. No Authority. It is expressly understood and agreed that no employee, agent, or another representative of one party has any authority to bind the other party with respect to any statement, representation, warranty, covenant, or another expression unless such statement, representation, warranty, covenant, or other expression is specifically set forth in this Agreement.
15.3. Amendment. No amendment, waiver, or modification of this Master Agreement or any provision of this Master Agreement shall be valid unless in writing, stating with specificity the particular amendment or modification to be made, and duly executed by the parties.
15.4. No Waiver. Nothing contained in this Master Agreement shall cause the failure of either party to insist upon strict compliance with any covenant, obligation, condition or agreement contained in this Master Agreement to operate as a waiver of, or estoppel with respect to, any such covenant, obligation, condition or agreement. Waiver by any party of any breach of any provision of this Master Agreement shall not be considered as, nor constitute a continuing waiver or waiver, breach or cancellation of, any other breach of any provision of this Master Agreement.
15.5. Attorneys’ Fees. In the event of any action, including but not limited to litigation or arbitration, between the parties to enforce the provisions of or with respect to this Master Agreement or any SOW, the prevailing party in such action shall be entitled to reimbursement for reasonable attorneys’ fees and costs at trial (if relevant) and on appeal.
15.6. Governing Law; Jurisdiction and Venue. This Master Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of Utah, without regard to its conflicts of laws rules. The parties irrevocably submit and consent to the exclusive jurisdiction and venue of the state courts in and for Utah County and the Federal Courts in and for the Utah District. The parties waive all rights to trial by jury in any action or proceeding instituted in connection with this Master Agreement. The parties agree not to raise the defense of forum non-conveniens.
15.7. Counterparts. The parties may execute and deliver this Master Agreement in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall be deemed to be one agreement.
15.8. Force Majeure. If and to the extent that either party is prevented or delayed by a Force Majeure from performing any of its obligations under this Master Agreement and promptly notifies the other party, then the affected party will be relieved of liability to the other for failure to perform or for delay in performing such obligations (as the case may be) and will not be in breach of the terms and conditions of this Master Agreement as a result of that failure or delay, but will nevertheless use its best efforts to resume full performance as soon as possible.
16. ENTIRE AGREEMENT
This Master Agreement (including all Proposals, SOWs, addendums and other signed agreements) contains the sole and entire agreement between the parties with respect to the subject matter of this Master Agreement and supersedes any and all other prior or contemporaneous written or oral agreements or understandings between them with respect to the subject matter contained herein.
1881 W Traverse Pkwy Ste E
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