Terms of Service
This Master Services Agreement (this “Agreement”) is dated February 22nd, 2019 (the “Effective Date”) and by and between the following parties:
Tempest, Inc., for itself and on behalf of all of its subsidiaries and controlled affiliates (each a member of “Tempest”). Each member of the Tempest shall be bound by the terms of this Agreement. (collectively “Tempest”);
This Agreement shall not become effective and Tempest shall not commence services to the Client until this Agreement is fully executed and returned to Tempest at the address set forth above.
NOW THEREFORE, in consideration of the mutual covenants and conditions set forth in this Agreement, the undersigned parties hereby agree to be bound for good and valuable consideration as follows:
- Engagement. Client hereby engages Tempest and Tempest hereby accepts such engagement, to perform certain Website Design & Development Services, CRM, Web Hosting, Advertising, Digital Marketing Services or other services as described in the Statement of Work (“Statement of Work” or “SOW”) attached as Schedule A.
- From time to time while this Agreement remains in effect, Tempest and Client may mutually agree upon services to be performed by Tempest set forth in one or more additional Statement of Work, which will be incorporated by reference into this Agreement.
- Any Statement of Work that references this Agreement shall be subject to and governed by this Agreement, and the terms of this Agreement shall supersede any contrary terms in an SOW unless the SOW refers to and overrides specifically the contrary term in this Agreement.
- The Client is responsible for providing Tempest with the necessary items and information specified in any Statement of Work and Tempest is not liable for any delays due to Client’s failure to provide such items or information to Tempest on a timely basis. The Client acknowledges that such a failure may result in increased fees and schedule extensions by Tempest.
- Service Fees. The fees for services provided under this Agreement shall be specified in a Fee Schedule to be included in each Statement of Work.
- Expenses. Client shall pay, or promptly reimburse Tempest for, any out-of-pocket travel and travel-related expenses not specified in the Agreement and incurred by Tempest in connection with the performance of the Services. Client shall pay to Tempest all undisputed fees within thirty (30) days of the date of the applicable Tempest invoice.
- Tempest shall reserve the right to suspend performance of all Services if the Client fails to pay an invoice within [thirty (30)] days of the date of said invoice.
- In the event of a dispute as to an invoice, the Client shall nevertheless pay the undisputed portion of such invoice.
- Tempest expressly reserves the right to change the rates charged hereunder for the Services during any Renewal Term as defined in Section 3.2, provided that Tempest notifies Client of any such proposed rate increase not less than ninety (90) days prior to the commencement of any Renewal Term.
- Term. Automatic Renewal.
- Initial Term. The initial term of this Agreement shall be for a period of three (3) years commencing on the Effective Date (the “Initial Term”).
- Automatic Renewal. Unless it is stated otherwise in the Statement Work, this Agreement shall automatically renew for the same duration as the Initial Term upon the expiration of the Initial Term (each a “Renewal Term”), unless this Agreement is terminated under Section 12 below.
- Notice of Non-Renewal. This Agreement shall automatically renew under Section 3.2 unless either party gives written notice of its intention to terminate and not renew this Agreement no later than ninety (90) days prior to the expiration of the Initial Term or any subsequent Renewal Term.
- Confidentiality. Each party agrees that during the course of this Agreement, information that is identified as confidential or proprietary may be disclosed to the other party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (“Confidential Information”).
- Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by individuals of the receiving party without access to the Confidential Information, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in order to perform that party’s obligations under this Agreement. Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
- Each of the Parties shall use at least those precautions to protect such information and other property that it uses to protect its own information and other property, in no event less than those precautions generally required by industry standards.
- Client shall not use any of the Confidential Information of Tempest or any Tempest Materials (as defined below in Section 5.2) to compete with Tempest or in any way that would diminish the value or the rights of Tempest in such information or materials.
- Proprietary Rights.
- Proprietary Rights of Client. Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Nothing in this Agreement shall be construed to grant Tempest any ownership right in the Client Content.
- Proprietary Rights of Tempest. Subject to Client’s ownership interest in Client Content set forth in Section 5.1, all trade secrets, know-how, methodologies, processes and materials, including, but not limited to, any computer software (in object code and source code form), script, programming code, data, information or HTML script developed or provided by Tempest or its suppliers outside of this Agreement, for general use by all of Tempest’s clients and without reference to or inclusion of any Client Content shall be referred to as the “Tempest Materials”.
- For clarity, the Tempest Materials shall not include any materials or other work product developed by Tempest specifically for Client’s site, including original elements of audiovisual displays created hereunder specifically for Client, which shall be deemed to be part of Client Content.
- The Tempest Materials shall remain the sole and exclusive property of Tempest or its suppliers, including without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto. To the extent, if any, that ownership of the Tempest Materials does not automatically vest in Tempest by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Tempest all rights, title and interest which Client may have in and to the Tempest Materials.
- Client acknowledges and agrees that Tempest is in the business of designing and marketing websites, and that Tempest shall have the right to provide to third parties services which are the same or similar to the Services so long as no such third party services reference or incorporate any Client Content, and to use or otherwise exploit any Tempest Materials in providing such services.
- Grant of License by Client. Client hereby grants to Tempest a non-exclusive, worldwide, royalty free license for the Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement.
- Grant of License by Tempest. Tempest hereby grants to Client a perpetual, worldwide, non-exclusive, royalty free, unrestricted, non-transferable license to make use of Tempest Materials that are incorporated in any website developed for the Client by Tempest (the “Website”) and that are required or useful for the operation of the Website. Client cannot use the Tempest Materials for any other purpose, including selling, copying or transferring any portions to third parties, or providing website development or hosting services for others. Tempest hereby reserves for itself all rights in and to the Tempest Materials not expressly granted to Client in the immediately foregoing sentence. In no event shall Client use any trademarks or service marks of Tempest without Tempest's prior written consent.
- No Sub-License by Client. Client does not have authority to and shall not grant any sub-license of Tempest Materials.
- Notwithstanding the foregoing, Client shall have the right to enter into assignments or sub-licenses or its rights with respect to the Tempest Materials in connection with a sale of all or a part of the business which includes the use the Website, subject to the written approval of Tempest which shall not be unreasonably withheld.
- No Sub-License by Client. Client does not have authority to and shall not grant any sub-license of Tempest Materials.
- Tempest Warranties. Tempest warrants: (i) that Tempest has the right and authority to enter into and perform its obligations under this Agreement; (ii) that Tempest shall perform the Services in a professional and workmanlike manner; and (iii) that to its knowledge the Tempest Materials do not infringe or violate any right of any third party.
- Client Warranties. Client warrants that: (a) it has all authorization(s) necessary for hypertext links to third party websites; and (b) that the materials provided to Tempest, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, are true and accurate; and (c) that the Client Content does not infringe or violate any right of any third party. Client shall provide all necessary Client Content, including database files, reports and other materials for implementation of the Client Project.
- Indemnification by Client. Client agrees to indemnify, defend, and hold harmless Tempest, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the gross negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Site provided by Client infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
- Indemnification by Tempest. Tempest agrees to indemnify, defend, and hold harmless Client, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) would constitute a breach of any of Tempest representations, warranties, or agreements hereunder; (ii) arises out of the gross negligence or willful misconduct of Tempest; or (iii) any of the Tempest Materials infringe or violate any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
- Warranty Disclaimer and Limitation of Liability. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7, TEMPEST MAKES NO WARRANTIES HEREUNDER, AND TEMPEST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES AGAINST INFRINGEMENT (EXCEPT WITH RESPECT TO TEMPEST MATERIALS).
- THE TOTAL LIABILITY OF TEMPEST HEREUNDER FOR ANY SERVICES NOT PROPERLY PERFORMED (INCLUDING ANY LIABILITY FOR NEGLIGENCE) SHALL BE LIMITED, AT THE ELECTION OF CLIENT, TO (a) PERFORMING THOSE SERVICES CORRECTLY, OR (b) IF SUCH PERFORMANCE IS IMPOSSIBLE, TO THE AMOUNTS PAID TO TEMPEST FOR THE SERVICES THAT WERE IMPROPERLY PERFORMED. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND OR INCREASED COST OF OPERATIONS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF TEMPEST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO TEMPEST BY CLIENT UNDER THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS BUT SHALL NOT APPLY TO INDEMNIFICATION FOR THIRD PARTY CLAIMS PROVIDED UNDER ARTICLE 8.
- Limit on Statute of Limitations. Notwithstanding any other provision of this Agreement or of applicable law, neither party shall be permitted to bring a cause of action for breach, or otherwise arising out of this Agreement more than one year after the party seeking to bring the action discovered or should reasonably have discovered the facts forming the basis for the cause of action.
- Entire Agreement. This Agreement, the attached Exhibits and any SOW’s constitute the entire agreement between Client and Tempest with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
- Governing Law. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania and, subject to Section 11.3 below, the State and Federal courts located in that State shall have the exclusive jurisdiction to resolve any disputes between the parties arising under this Agreement.
- Arbitration. Any claim, controversy or dispute among the parties to this Agreement will be resolved by binding arbitration, by a mutually acceptable arbitration organization in Philadelphia, Pennsylvania. The arbitrator will have authority to award any form of damages as well as injunctive relief. The arbitrator's award will be final and binding and may be entered in any court having jurisdiction thereof. The prevailing party shall be awarded all its costs, including but not limited to any filing fees, the fees of the arbitrator, reasonable attorneys' fees, travel expenses, and/or any other costs incurred relating to the dispute
- Force Majeure. Neither party shall be liable for delays or failure in performance hereunder caused by acts of God, war, strike, riot, labor dispute, work stoppage, fire, judicial or governmental action, or any other cause, whether similar or dissimilar, beyond reasonable control of that party.
- Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
- Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
- Survival. All provisions of this Agreement relating to Client warranties, confidentiality, non-disclosure, proprietary rights, and limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
- Headings. The descriptive headings of the several sections of this Agreement are inserted for convenience only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
- Termination by either party upon Breach. Tempest or Client has the right for immediate termination of this Agreement and the Services upon breach of the Agreement, including its Exhibits if such breach is not cured within 30 days of written notice of such breach.
- Termination by Tempest. Notwithstanding the previous Section 12.1, Tempest may terminate this Agreement and all Services immediately without notice if Client fails to pay Fees when due and owing or Tempest determines that Client is failing to comply with the rules and regulations as described in Section 7 above or is not in compliance with any of the material terms contained in this Agreement.
- Automatic Termination. This Agreement will be terminated without further action by either party if the Client has terminated or canceled its subscription to all Tempest services in accordance with the terms of the applicable Statement of Work or Fee Schedule.