a. Promotional Purposes. Company shall at all times, including subsequent to the expiration or early termination of this Agreement, and without additional notice to or consent from Client, use, publish, exploit and distribute such Work(s) and Client’s name for the purpose of promoting Company’s goods and services.
b. Materials. Company shall own and retain 100% of the rights, title and interests in and to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Other Materials”) which have been presented to Client, but not included in the Work(s).
c. Underlying Technology. Company shall own and retain 100% of the rights, title and interests in and to any technology, technical documentation, inventions, algorithms, software, architecture, logic, navigation, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, files and features incorporated into, utilized by or embodied by the Work(s) (collectively, “Underlying Technology”). Unless the parties agree otherwise in any SOW(s) signed and delivered by the parties, Company shall retain sole and exclusive ownership in and to any and all such Underlying Technology, including any and all associated or ancillary or incidental rights, title and interest thereto. Company hereby grants to Client during the Term and any Renewal Term(s), a nonexclusive, royalty-free, irrevocable, worldwide license to use, reproduce, distribute, display, perform and exploit Company’s Underlying Technology, in compiled machine readable object code form only, to the extent incorporated into the Work(s) and other deliverables provided hereunder strictly for the purposes and in the territories set out in the applicable SOW(s). Client’s use of Underlying Technology for any project other than the project(s) set forth on or contemplated by the SOW and/or use on any other website, platform or in any other media shall be subject to additional fees (as further determined by Company) and licenses which license may be granted, conditioned or withheld by Company in its sole and absolute discretion.
d. Other Utilization of the Work(s). In the event that Client desires to utilize any aspect of the Work(s), for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement or the SOW(s) or following the conclusion of the delivery of the Services, Client shall have a first right of refusal relative to being engaged to implement such new work(s) and Client shall not solicit or hire a third party to undertake such work(s) unless Company declines such new engagement and, at all times, any offering to third parties to undertake such new work(s) shall be on terms equal to, but not better than, the commercial terms (including payment terms) being offered to Company.
e. Design. Company shall retain 100% of the ownership rights in and to any creative works, including images, illustrations, animations and/or other proprietary artwork developed or contributed by Company, if any, including those listed in any applicable SOW(s) (each item, a “Design”).
f. License. Notwithstanding any terms contained herein to the contrary (including in Subsections 14(a), 14(b), 14(c), 14(d) 14(e) of this Agreement), Company shall grant to Client a nonexclusive, royalty-free, irrevocable, worldwide license to use, reproduce, distribute, display, perform and exploit those Work(s) embodying the Retained Components in any format or medium, electronic or otherwise, for a period of 1 year following the Effective Date.
g. Retained Rights. Any rights not expressly granted herein by Company hereunder shall be retained solely and exclusively by Company.
15. CONFIDENTIALITY AND NONDISCLOSURE. Client acknowledges that during the Term and any Renewal Term(s), Company has and will continue to make available to Client certain Confidential Information including any trade secret and/or proprietary information to enable Company to deliver some or all of the Services and to perform Company’s obligations under this Agreement. Client also acknowledges and agrees that Company is engaged in the highly competitive digital marketing business and that Company’s involvement such business has required and continues to require the expenditure of substantial amounts of time, money and resources and the use of skills, knowledge, and expertise developed over an extended period of time by Company. As a result, Company has developed and will continue to develop certain valuable Trade Secrets and Confidential Information that are unique and valuable to, and the essence of, Company’s business, and the disclosure of which to others by Client would cause Company great and irreparable harm. Such Trade Secrets and Confidential Information have and will continue to be disclosed by Company to Client during their business relationship. During the Term and any Renewal Term(s), and for a period of 5 years thereafter, Client agrees, subject to the terms and conditions of this Section 11, not to voluntarily or involuntarily disclose, furnish, transmit, send or disseminate Company’s confidential, proprietary information and trade secrets (as those terms are defined by Company) to any person or entity (including any governmental or quasi-governmental entity or Company) in contravention of either the terms or spirit of this Section 11. Client agrees to hold all such Confidential Information in the strictest confidence and agrees not to disclose or use such Confidential Information except as necessary for the performance of Client’s obligations hereunder. Client agrees that it shall not, during the Term and during any Renewal Term(s) and for a period of 5 years thereafter, use or disclose any such Confidential Information unless ordered to do so by a court, tribunal or governmental Company of competent jurisdiction over Company and/or the Confidential Information. Client acknowledges and agrees that in the event of a breach or threatened breach of any of the covenants and promises contained in this Section 11, Company shall suffer irreparable injury for which there is no adequate remedy at law, and Company shall therefore be entitled to injunctive relief from any court or tribunal of competent jurisdiction enjoining said breach or threatened breach. Client further acknowledges that Company also shall, at all relevant times, have the continued right to seek any remedy(ies) at law for any violations of this Section 11 (in addition to any equitable relief potentially sought by Company, including specific performance, preliminary and permanent injunctive relief, which Client agrees shall be sought by Company without bond, to enforce any rights of Company relating thereto). In the event that a court of competent jurisdiction determines that bond is a necessary prerequisite to the issuance or enforcement of any injunction sought by Company notwithstanding any provisions contained in this Section 118 to the contrary, Client agrees that a bond not exceeding $1,000 shall be a sufficient. The prevailing party in any action for either damages or injunctive relief hereunder shall be entitled to costs, including attorneys’ fees incurred at all pre- litigation, post-litigation, trial and appellate phases. These terms shall be binding upon Client and Client’s affiliates, and their respective successors and assigns. Client shall not disclose confidential or trade secret information even if required by an order of a court of competent jurisdiction or other governmental body, unless Client first gives Company written notice thereof and an opportunity for Company to seek a protective order or other appropriate remedies. To the extent that Client shall be ordered to furnish, disclose or disseminate any Confidential Information, only that portion of the Confidential Information that it is legally required to be furnished shall be furnished, disclosed or disseminated by Client. “Confidential Information” means Company’s data, materials, information and documentation (whether in tangible or in intangible form, including Confidential Information memorized by Client), which is valuable to Company and not generally known to the public or its competitors, including: (1) financial information, assets, prices, fee structures, expenses, budgets; (2) vendor and service information, such as information concerning the goods and services utilized or purchased by Company, the names and addresses of Company’s suppliers, contractors, licensors and vendors, the terms of contracts with such parties or transactions, as well as vendor and service information relating to prospective suppliers, contractors, licensors and vendors; (3) marketing and advertising information, including details about ongoing or proposed branding, marketing or advertising programs, strategies, or agreements by or on behalf of Company, marketing forecasts, results of marketing efforts, projects or other related transactions; (4) customers, service providers, licensees, clients, joint venture or marketing partners or entities with whom Company has strategic alliance information, including sales, service information, pricing, royalty or commission models and information for customers, as well as, any compilations of existing customers, customer proposals or agreements between customers and Company; (5) business plans and strategies, business models, brand development, licensing arrangements, sales forecasts and strategies, and similar business information; (6) non-public information regarding pending or threatened litigation, claims or disputes and Company’s litigation strategies respecting same; and (7) any information, documentation or material deemed to be Confidential Information by Company. Confidential Information shall at all times during the Term and any Renewal Term(s) mean, Trade Secrets. “Trade Secrets” means Confidential Information that meets the requirements of applicable trade secret law, including any information, such as formulas, patterns, compilations, programs, devices, methods, techniques or processes that derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and all other information that Company undertakes to keep secret or determines to be a trade secret.
16. INDEMNIFICATION. Client shall indemnify, defend, covenant not to sue, release, protect and hold harmless Company, and Company’s respective affiliates, successors, assigns, officers, members, directors, employees, and agents (collectively the “Indemnified Parties”) from and against any and all claims (including third party claims), losses, deficiencies, damages, liabilities, costs, and expenses including, but not limited to, all costs and expenses, reasonable attorneys’ fees and legal expenses, paid or incurred by such Indemnified Parties as a result of any actual or threatened claim, judgment or adjudication against such Indemnified Parties arising from: (i) any negligent acts or omissions of Client respecting the delivery of the Services and, Client’s employees, agents, and representatives (ii) any material and uncured breach of any representation, warranty, or covenant made Client in this Agreement; and/or (iii) any claims or potential claims of infringement.
17. Warranties and Representations.
18. No Warranties and Representations. Company makes no representations or warranties, express or implied, with respect to this Agreement, the Work(s) or other materials and expressly disclaims all such representations and warranties, including any with respect to title, non-infringement, value, reliability or fitness for use.
19. Client Warranties and Representations. Client warrants and represents that: (i) Client has the full right and authority to enter into, fully perform the obligations set forth under this Agreement and bind Client hereunder; (ii) Client is not, and shall not become, a party to any agreement or arrangement that would in any way, whether directly or indirectly, prevent, limit or hinder in any way Client’s ability to (a) enter into and/or perform its obligations or assume and legal and financial obligations of Client under this Agreement or (b) grant any of the rights or approvals required herein or (c) perform any of Client’s obligations under this Agreement; (iii) Client shall, at Client’s sole cost, determine the need for and shall apply for, and shall secure any and all Clearances either required, integral or desired to use, reproduce, distribute, publish or otherwise exploit the Work(s); (iv) Client either exclusively owns and/ or controls all rights, title and interests in and to, or, has obtained, in writing, all of the requisite Clearances from all lawful rights holders in and to the Work(s); Client shall neither assign this Agreement nor assign any of Client’s rights, privileges or obligations hereunder without the prior written consent of Company, and which consent may be withheld, delay and/or conditioned, in Company’s sole and absolute discretion. Any attempt(s) by Client to assign or transfer any or all of its rights, title, interests and/or privileges under this Agreement in contravention of this provision shall be void. In the event of any assignment of transfer of any rights, privileges, title and/or interests of Company hereunder Client hereby agrees to (a) recognize Company’s assignor, transferor or other successor-in-interest as the Company’s successor (the “Successor Company”); and (b) be and remain bound and liable to such Successor Company pursuant to the terms, covenants and conditions of the Agreement; and the parties agree that Client shall have available to Client, all remedies (to the extent set forth in this Agreement) against such Successor Company as though Successor Company were party to this Agreement from its inception. Although the foregoing provisions of this Agreement shall be self-operative, Client acknowledges and agrees to execute and deliver to Company any and all other instrument(s) as Company or Successor Company or such other person or entity shall from time to time request in order to give legal effect to this provision.
26. AMENDMENT. No amendment hereof or supplement or other modification hereto of any term or provision or breach hereof, shall be valid or effective against Company unless such amendment, supplement, or other modification is in writing and is signed by Company.
27. SEVERABILITY. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the unenforceable provision shall not affect the otherwise valid terms or provisions or the whole of this Agreement. The applicable terms or provisions shall be deemed modified to the extent necessary to render such provision enforceable, and the rights and obligations of the parties will be construed.
28. WAIVERS. No waiver, discharge, or release of any term or provision, default or breach hereof, shall be valid or effective against Company unless waiver, discharge, or release, is in writing, expressly refers hereto, and is signed by Company.
29. ENTIRE AGREEMENT. This Agreement, together with the attached exhibits, schedules, or riders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous oral or written agreements between the parties with respect to the subject matter hereof.
30. MISCELLANEOUS. This SERVICE AGREEMENT does not cover:
• Any items not listed above
• Out of pocket costs (which will be estimated prior to purchase) including photography, illustrations, messenger services, or any applicable sales or related use tax.
31. APPROVALS. IN WITNESS WHEREOF and in acknowledgment that the parties have read, understood, and agreed to the Services, deliverables, and fees as set forth herein; Company and Client have caused this AGREEMENT to be executed below by their duly authorized representatives as of the Effective Date.
32. TIME OF THE ESSENCE. Time is of the essence respecting Client’s obligations hereunder.
33. APPLICABLE LAW. This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of California and subject to the exclusive jurisdiction of the federal and state courts located in Hillsborough County, Florida
34. APPLICABLE LAW. IN WITNESS HEREOF, by execution by the client on the digital or print copy, this master Service Agreement will form a part of the contract.