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Master Services Agreement

This Services Agreement (the “Agreement”) shall govern the provision of services to the partner (the “Partner”) by AGENCY (“Agency”). Additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefor are set forth in the Statement of Work (the “SOW”) which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the Agreement shall control. 



Any services outside the scope of the SOW or changes to previously approved work requested by the Partner shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties. Each such additional SOW or Change of Scope is hereby incorporated herein by this reference.



Partner will be notified in advance for pre-approval of any additional expenses in excess of those set forth on the SOW. If approved, Partner can either choose to pay such fees directly to the third-party vendor or reimburse Agency therefore upon presentation of applicable invoices. Agency shall maintain records of expenses.



The Partner shall pay Agency for the work performed hereunder as set forth on the applicable SOW. In no event will any payment under this Agreement be contingent on receipt of any monies or other compensation by the Partner. For the avoidance of doubt, fees or commissions payable to Agency for media planning and buying services are in addition to, and not inclusive of, Agency’s fees for other services which may be listed in the SOW, such as design, branding, hosting, and content distribution and syndication. Delays resulting from the action or inaction of Partner may result in an adjustment in fees by Agency, subject to Partner approval. All rights of the Partner herein are conditioned on the Agency’s receipt of full payment. In addition, the Agency may suspend the performance of services and withhold delivery of materials until payment in full of all amounts due. Agency shall not be liable for any damages, losses or liabilities that may arise out of the Agency’s suspension of performance and/or withholding of materials due to Partner's nonpayment. Late payments shall accrue interest at the rate of 1.5% per month. The Agency shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys. 



The Agency’s ability to perform its obligations under this Agreement may be dependent on the Partner fulfilling its obligations. The Agency shall not be liable for any costs, charges or losses sustained by the Partner arising directly from any failure of the Partner to fulfill its obligations under this Agreement. If applicable, all copy provided by the Partner shall be in electronic, Macintosh-compatible format suitable for typesetting. Where photographs, illustrations or other visual materials are provided by the Partner, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. The Partner shall pay all fees and expenses required to bring nonconforming materials up to such standards. The Partner warrants that all assets, concepts, materials, specifications, information, and instructions provided by Partner or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties. The Partner agrees to complete a quarterly performance survey provided by the Agency. The Agency will use the survey scores/feedback in a way to improve the quality of their services. The Partner also agrees to act as a reference on behalf of the agency, within reason, when requested by the Agency.



Work will not commence until the signed SOW has been received. Within five (5) business days following receipt of any deliverables, the Partner will provide Agency with either (a) written approval and acceptance of such deliverable (which will not be unreasonably withheld), or (b) a written list of reasonable modification guidelines that will bring the deliverables into compliance with the SOW. Each deliverable hereunder will be deemed accepted by the Partner if, within five business days of its delivery to the Partner, the Partner does not receive the foregoing written notice. The Partner's written approval of any deliverables, materials, plans or other Work created or produced by the Agency in the course of the provision of the Services, or any cost estimate, will constitute the Agency’s authority to purchase, publish, or make anything which the Agency considers it reasonable to do in order to carry out its obligations under this Agreement or any Statement of Work. The Agency will not be obliged to commit to any expenditure on behalf of the Partner without first receiving written confirmation of the Partner's instructions and the Agency will not be responsible for the consequences of any delay on the part of the Partner in providing such written confirmation.



Unless otherwise stated in this Agreement or agreed by the parties in writing, the Agency’s contracts with suppliers in respect of the Services shall be made in accordance with suppliers’ standard terms or such other terms as the Agency is able to negotiate with the relevant supplier. The Agency shall act as principal in all such contracts, but all rights and liabilities as between the Partner and the Agency shall correspond to those between the Agency and the various suppliers under such conditions, including in particular any service levels and any rights of amendment, omission, and cancellation. The Agency shall use reasonable efforts to procure best commercial terms for the Partner, and on the Partner's written request the Agency shall supply the Partner with the relevant terms and conditions.



The Partner is responsible for obtaining all legal clearances required for the performance of services hereunder. The Partner shall indemnify, defend (at its own cost and expense) and hold Agency and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Partner.



Agency shall not be held responsible for delays or nonperformance caused by activities or factors beyond its reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Partner or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, res, acts of God, terrorism, failure by the Partner to timely furnish information or approve or disapprove work, or faulty performance by the Partner or others, including third-party contractors hired by Agency or by Partner. Agency shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. Agency’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.



Confidential information is that which relates to the Partner's or Agency’s research, development, trade secrets or business affairs and includes, in the case of Agency’s confidential information, concepts presented to, but not selected by, the Partner; it does not include information that is generally known or easily ascertainable by third parties. Agency and the Partner shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. Neither party shall solicit the other’s employees, independent contractors or consultants, or engage them in any work independent the parties’ relationship under this Agreement during the term of the Agreement and for two years thereafter.



Subject to Agency’s receiving full payment under this Agreement, Agency assigns to the Partner, without representation or warranty, all rights, title, and interest Agency may have in any work specifically created by Agency for the Partner pursuant to this Agreement, except that: (a) Agency may use and distribute such work as part of its portfolio for promotional purposes; (b) Agency shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Work”) which have been presented to the Partner but not included in the final work product; (c) If the Partner desires to utilize any of the Work, whether accepted or rejected by the Partner hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Partner shall hire Agency to design, create, develop, market and otherwise implement such work. The Partner may solicit or hire a third party to implement such Work if, and only if, Agency declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to Agency.



Either party may terminate this Agreement for any reason upon giving 60 days’ prior written notice to the other. Upon termination of this Agreement by Partner without the Agency’s fault or consent, Partner shall pay Agency, in addition to all of the fees earned by Agency pursuant to the terms hereof, including any and all expenses and third-party costs reasonably incurred by Agency through the effective date of cancellation. At Agency’s election, Partner's delay of work under this Agreement for a cumulative period of more than 30 days without the Agency’s fault or consent shall be considered a termination of this Agreement by Partner within the meaning of the immediately preceding sentence. If Partner desires to terminate this Agreement due to Agency’s fault, Partner shall give Agency written notice detailing the nature of the Agency’s fault and possible remedies, whereupon Agency shall have a reasonable period of time (but in no event less than 30 days) to cure such fault. Termination by Partner without providing the foregoing notice and cure period shall be considered “termination without Agency’s fault’ as described above.



This Agreement shall be interpreted and construed in accordance with the laws of the State of Colorado, without regard to any conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in Denver County, Colorado for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any such action or proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees of its attorneys. Any and all notices required or permitted hereunder shall be sent by certified mail, return receipt requested, to the address of the party for which intended, set forth below its signature hereto and, in the case of the Agency.