This Agreement (“Agreement”) serves as the Master Services Agreement by and between DemandGen International, Inc., a California corporation (“Company”) located at 9000 Crow Canyon Road, Suite 180, Danville, CA 94506 and our Client who may be individually referred to as a “Party” and jointly as the “Parties.” The Effective Date of this Agreement shall be the date on which a Statement of Work is signed and agreed to by the Parties. By entering into a Services-related agreement (“Statement of Services, Order Form, Statement of Work”) with DemandGen, Customer unconditionally accepts and agrees to all of the terms of this Agreement.
By entering into this Agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity and its affiliates to the terms of this Agreement, and, accordingly, the terms “Customer” shall refer to such entity and its affiliates.
In consideration of the foregoing, and for the mutual covenants and agreements set forth herein, Company and Client agree as follows:
Client hereby engages Company to perform the Services as more particularly described in the Statement of Services (“Services”). Company shall perform the Services in a professional manner and devote such amount of time as is necessary to properly and timely complete the Services. Client acknowledges that some aspects the Services provided by Company may require Client’s cooperation and assistance and Client agrees to provide Company with reasonable cooperation and assistance.
2. Fees and Payments.
In consideration for Company’s provision of the Services, Client shall pay Company the fees set forth on the Statement of Services signed between the Parties. If required, expenses for travel from outside the area are not included in the fees.
Client’s payments due shall be made within thirty (30) days of Client’s receipt of Company’s invoice. Company will invoice Client monthly for the amounts set forth on the Statement of Services signed between the Parties.
Company shall have the right to immediately terminate this Agreement in the event that Client fails to make pay any undisputed invoice in accordance with the terms of Paragraph 2.1.
Pursuant to the Statement of Services, certain fees may become due and payable on early termination of this Agreement.
Client’s obligation to pay all open invoices and any late fees survives the termination of this Agreement.
“Proprietary and Confidential Information” shall mean confidential or other proprietary information that is disclosed by either Party to the other under this Agreement, including without limitation, each Party’s Proprietary Items, software code and designs, hardware, product specifications and documentation, and other confidential business information including information relating to such Party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Proprietary and Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the receiving Party; (ii) is disclosed by the receiving Party with the prior written approval of the disclosing Party; (iii) was previously known to the receiving Party without an obligation of confidence; (iv) is independently developed by the receiving Party without use of the Proprietary and Confidential Information; or (v) was acquired by the receiving Party from a third party which is not, under an obligation of confidence with respect to such information.
The Parties agree to protect and keep such Proprietary and Confidential Information confidential with at least the same degree of care as such Party protects its own Proprietary and Confidential Information of like kind, but in no event using less than a commercially reasonable degree of care. The Parties agree not to use or disclose such Proprietary and Confidential Information for any purpose other than those specifically contemplated by this Agreement. The obligations of this Section 4 do not restrict any disclosure by either Party (i) pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing Party gives prompt notice to the non disclosing Party of such order so that the non-disclosing Party may seek a protective order or other appropriate remedy); or (ii) to either Party’s accountants, legal advisors, auditors and financial advisors so long as such advisors are subject to confidentiality obligations substantively similar to these terms.
In the event this Agreement expires or terminates for any reason, each Party shall promptly either return or destroy and certify destruction of all of the other Party’s Proprietary and Confidential Information in its possession except that each Party may retain one (1) copy of the Proprietary and Confidential Information for compliance with this Agreement and archival purposes. The provisions of this Paragraph 3 shall survive the expiration or termination of this Agreement.
4. Intellectual Property.
4.1 Definition of Proprietary Items.
”Proprietary Items” means materials, tools, design guides, reports, documents, templates, studies, software programs in both source code and object code, specifications, business methods, methodologies, processes, techniques, solution construction aids, analytical frameworks, algorithms, know-how, processes, products, documentation, abstracts and summaries thereof, whether existing prior to the execution of this Agreement or developed during the term hereof either in connection with the performance of the services or the scope of this Agreement, including all intellectual property rights therein. All Proprietary items developed by or proprietary to Company or to its third party providers shall be “Company Proprietary Items” and all Proprietary Items developed by or proprietary to Client or its third party providers, including the Client Accounts (as defined in Section 5 below) shall be “Client Proprietary Items.”
4.2 Use of Company Proprietary Items in Connection with Services.
With respect to all Company Proprietary Items not embedded into any deliverable, Company hereby grants Client a nonexclusive, nontransferable, royalty-free license during the term of the Agreement to access and use such unembedded Company Proprietary Items, to the extent necessary for Client to use the Services. Client will have no other rights in unembedded Company Proprietary Items.
Subject to payment in full of any undisputed fees, Company hereby grants Client a perpetual, worldwide, irrevocable, fully-paid, nonexclusive, transferable and sub-licensable right and license to make, have made, use, sell, offer for sale, export, import, execute, reproduce, redistribute, modify, create derivative works of, display and perform any Company Proprietary Items that are embedded by Company into any deliverables to the extent necessary for Client and its affiliates to receive, customize, distribute and otherwise exploit the deliverables.
4.4 Knowledge Capital.
Company shall not be precluded from independently developing or using for itself, or for others or licensing others to use, anything, whether in tangible or non-tangible form, which is competitive with, or similar to, the deliverables. Company will be free to use the general knowledge, skills and experience and any ideas, concepts, know-how and generic techniques that are developed by Company in the course of providing the Services.
5. Access to System Accounts.
In connection with the Services, Company may require access to Client’s Marketing Automation, CRM, or other system accounts (the “Client Accounts”). If requested by Company, Client shall provide Company with a user names and password which shall enable Company to access the Client Accounts. Company shall only access the Client Accounts to the extent necessary to perform the Services and, upon the expiration or termination of this Agreement, shall destroy all user names and passwords provided by Client.
6. Term and Termination.
This Agreement shall be effective commencing on the date that this Agreement has been executed by authorized representatives of each Party and shall terminate upon the completion of the Services under the Statements of Services. This Agreement, or any Statement of Services, may be terminated (i) pursuant to Section 2, or (ii) at any time, with or without cause, by either Party upon forty-five (45) days written notice to the other Party delivered personally (in hand), by registered mail, or by email with a confirmed receipt. Termination or expiration of this Agreement, and regardless of the reason, shall not terminate or relieve Client of its obligation to pay Company for the Services that have been completed, and all monies due to Company per the terms of this Agreement.
Each Party represents that it has the necessary authority to enter into this Agreement and carry out its obligations hereunder. Client warrants and represents that it owns or has otherwise secured the right to use, and to provide to Company for its use, all Client Proprietary Items provided by Client to Company for use in connection with the Services, and that such Client Proprietary Items will not infringe or misappropriate any third party’s intellectual property or proprietary rights. Company warrants and represents that the Services and any deliverables will not infringe or misappropriate any third party’s intellectual property or proprietary rights.
During the term of this Agreement, and for a period of twelve (12) months thereafter, each Party agrees not to solicit, recruit or employ any employee of the other party without the prior written consent of the other party. Each Party acknowledges that its failure to honor this non-solicitation provision could result in the other party suffering irreparable harm. As the exact amount of such damages cannot be readily quantified, upon a breach of this non-solicitation provision, the breaching party shall pay to the other Party, as liquidated damages (and not a penalty), the sum of $75,000 for each such breach. Neither the existence of that liquidated-damages provision nor payment of liquidated damages for any such breach in any way limits the breached Party’s additional right to seek injunctive relief or any other equitable remedies respecting any such breach or continuing breach.
9. No Warranty.
THE SERVICES ARE PROVIDED BY COMPANY ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS RESPECTIVE AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, THE “COMPANY BUSINESSES”) MAKE NO REPRESENTATION ABOUT THE SUITABILITY OF THE SERVICES FOR ANY PURPOSE. COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CLIENT, COMPANY OR EITHER OF THEIR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, THE DELAY OR INABILITY TO USE THE SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, EACH PARTY’S LIABILITY SHALL NOT EXCEED THE AMOUNT CLIENT PAID COMPANY FOR THE SERVICES.
10. Independent Contractor.
It is understood and agreed that this Agreement does not create any relationship of association, employment, partnership or joint venture between the Parties nor constitute either Party as the agent or legal representative of the other for any purpose whatsoever; and the relationship of Company to Client for all purposes shall be one of independent contractor. Neither Party shall have any right or authority to create any obligation or responsibility, express or implied, on behalf or in the name of the other Party, or to bind the other Party in any manner whatsoever. Client shall not be entitled to continue to use any portion of any work product, nor any information contained in it, if Company does not receive payment in full both for undisputed amounts for all Services rendered, and any pre-approved and undisputed reimbursable expenses due Company per the terms of this Agreement. Use of Company’s work product shall be limited to Client’s own internal business purposes, and shall be at Client’s own risk and expense. While it is the practice of Company to proof copy or materials prior to submission to Client, Client is ultimately responsible for ensuring that all copy and materials are complete, correct and accurate in every respect, including but not limited to, all spelling, punctuation, trademark usage, grammar and content.
11. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors or heirs, distributees and personal representatives.
12. No Assignment.
Company may not assign this Agreement without the prior written consent of Client which Client may withhold in its sole discretion.
If any portion of this Agreement is deemed unenforceable, such provision shall be enforced to the fullest extent permitted by law and the remainder of this Agreement shall remain in full force and effect.
14. Changes; No Waiver.
The terms and provisions of this Agreement may not be modified or amended, or any of the provisions hereof waived, temporarily or permanently, without the prior written consent of each of the Parties. Company’s waiver or failure to enforce the terms of this Agreement or any similar agreement in one instance shall not constitute a waiver of its rights hereunder with respect to other violations of this or any other agreement.
15. Governing Law; Jurisdiction.
This Agreement and (unless otherwise provided) all amendments hereof and waivers and consents hereunder shall be governed by the internal law of the State of California, without regard to the conflicts of law principles thereof. Each Party hereby submits itself, for the sole purpose of this Agreement and any controversy arising hereunder, to the exclusive jurisdiction of the state and federal courts of California, and waives any objection to the exercise of such jurisdiction over it by any such court in the State of California. Subject to the terms of this Agreement, in the event that either Party brings any claim against the other Party alleging breach of this Agreement by that other Party, reasonable court costs and attorney fees incurred by the prevailing Party shall be born and reimbursed by the other Party.