MASTER SERVICES AGREEMENT
Last Updated: July 10, 2023
This Master Services Agreement (this "Agreement") is a legal agreement by and between ClearVoice, Inc., a Delaware corporation, with its principal place of business at 2425 Camelback Rd., Ste. 150, Phoenix, AZ 85016, its affiliates, and each of their respective successors and assigns (the "Company") and customer (the "Customer") identified in the applicable Order Form.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1 Managed Services. Subject to the terms and conditions of this Agreement, Company will provide the content marketing features, applications, and services which may include Managed Content, and functionality as set forth in the Order Form. The Order Form is incorporated into and made part of this Agreement.
1.2 Data Transfer and Processing. As part of providing the Platform, Company and its licensors and service providers may transfer and process all data and information provided or submitted by Customer to the Platform ("Data") in the United States or any other country in which Company, its licensors, service providers, or their agents maintain facilities or perform services. By using the Platform, Customer consents to (a) this transfer and processing of Data, and (b) the storage of (i) the technical data necessary to communicate to Customer's servers to utilize the Platform, and (ii) User personalization options.
1.3 Non-Circumvention. Customer shall not, during the Term and for a period of one (1) year following the termination or expiration of this Agreement, make any contact with, agreement with, or otherwise be involved in any transaction(s) with any Producer or Creator whose identity was gained solely pursuant to Customer's use of the Platform and/or the Company's services, except as provided within the Platform. Customer will not make any effort to circumvent this Agreement in an effort to do business directly with any Creator, Producer or Company employee. Notwithstanding the above, should Customer engage with a Producer or Creator for any purpose except as entitled within the Platform, during the Term or within one (1) year after termination or expiration, Customer shall be obligated to pay Company a fixed fee of USD 10,000 prior to such engagement.
1.4 Modifications. Company and its licensors may from time to time make modifications to the Platform, or particular components of the Platform. If such modification requires Company or its licensors to make any changes to this Agreement that Company, in its sole discretion, determines is material, Company will notify Customer via the Platform or email. If the change to the Agreement has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Company within thirty (30) days after receiving notice of the change. If Customer notifies Company as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Term. If Customer fails to notify Company within thirty (30) days, then Customer will be deemed to have accepted the modification. If the Term of the Agreement is renewed, it will be renewed under Company's then-current form of Agreement.
2. Customer Obligations.
2.1 Technical Obligations. Customer acknowledges and agrees that (a) Company is not responsible for any hardware used by Customer to access the Platform, and (b) if such Customer hardware is deficient, the Platform may not be accessible or available to Customer.
2.2 Users. Customer or Company will add Users individually using the Platform.
2.3 Use of Platform. Customer will specify a minimum of one User through the Platform who will receive certain notifications as set forth in this Agreement and will have the rights to manage and administer the Platform, including Customer Users (each, an“Administrator”). Customer is responsible for: (a) maintaining the confidentiality of its Platform access credentials; (b) designating those of its employees who are Administrator(s) and authorized to access the Platform; and (c) ensuring that all activities that occur in connection with the Platform comply with the terms of this Agreement and applicable law.
2.4 Compliance. Customer is solely responsible for all Platform activity by Customer Users. Customer will abide, and will ensure that Customer Users abide, by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Platform, including but not limited to those related to data privacy, international communications, export control, and the transmission of technical or personal data.
2.5 Privacy. Customer is responsible for protecting the privacy rights of Customer Users under all applicable laws and regulations. Customer's Administrator(s) may have the ability to access, monitor, use, or disclose Data of the Customer. Customer is responsible for obtaining any necessary authorizations, if applicable, from Customer Users to enable Company to provide the Platform.
2.6 Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Platform by Customer Users, and to terminate any such unauthorized use. Customer will promptly notify Company of any unauthorized use of, or access to, the Platform of which it becomes aware, including unauthorized use by any User, known or suspected breaches of security, and unlawful use of the Platform or Company Intellectual Property Rights.
2.7 Customer's use of Content. Customer may use the Platform to develop Content pursuant to the terms and conditions of this Agreement. Except to the extent expressly provided for in this Agreement, Customer shall be solely responsible for all use of the Content and Platform.
2.8 Customer's Cooperation. Customer acknowledges that the successful and timely rendering of the Services shall require the good faith cooperation of Customer. Accordingly, Customer agrees to provide all relevant information and full good faith cooperation reasonably necessary for Company to deliver and provide the Services. Company shall bear no liability or otherwise be responsible to compensate or provide additional work in case of delays or failure in the provision of the Services caused by Customer's lack of sufficient cooperation.
Company will make best efforts to deliver content ideas up front for the entire contract term but reserves the right to deliver ideas in as little as one month increments. Customer shall provide feedback on content ideas within ten (10) calendar days of the required dispatch date of the applicable service period, if no feedback is provided Company will make idea selections for Customer.
Company will share brief drafts with Customer during the first service period to align expectations on how briefs and assignments operate within the platform. Customer may suggest changes to brief drafts and Company will accommodate as long as the Platform can support such a request, and as long as such requests are made prior to dispatch timelines.
Customer shall request revisions or approve content within ten (10) calendar days of receipt (“Revision Period”). Requests by Customer that diverge from the original instructions including content additions, content rewrites, or any other substantial content alterations may incur reasonable fees. If no action is taken to revise or approve the content, or to extend the Revision Period, the content will auto-approve and be considered delivered in full to Customer. Revision requests occurring after the Revision Period and/or auto-approval may incur reasonable fees.
3. Term and Termination.
3.1 Initial Term; Prorated Terms. The initial term of this Agreement is the length of time beginning upon the Effective Date (as set forth on the applicable Order Form) and ending on the Expiration Date as specified in such Order Form (the "Initial Term").
3.2 Automatic Renewal. This Agreement will automatically renew for an additional term of the number of months of the Initial Term (each, a "Renewal Term" and, together with the Initial Term, the “Term”). At any time up to thirty (30) days prior to the expiration of the then-current Term, Customer may request cancellation of the Renewal Term in writing in the Platform or via email and this Agreement will terminate upon the conclusion of the then-current Term
3.3 Termination for Breach. Either Party may terminate this Agreement immediately upon written notice if: (a) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (b) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (c) with regard to Customer's payment obligations, Company may immediately (or, at its option, after suspension of access to the Platform pursuant to Section 6.2 below) terminate this Agreement for failure to pay any Fees when due pursuant to Section 4.1.
3.4 Termination for Convenience. Customer may terminate this Agreement without cause upon a minimum of thirty (30) days advance notice to Company. Customer will be assessed a fee ("Cancellation Fee") equal to fifty percent (50%) of any unpaid Fees owed to Company during the remainder of the Term.
3.5 Effect of Termination. Upon termination of this Agreement: (a) all rights and licenses granted under this Agreement will terminate, (b) Customer will pay Company all Fees owed and outstanding, and (c) upon request, each Party will return or destroy the Confidential Information of the other Party. All Fees paid to Company are non-refundable.
4. Fees and Payment.
4.1 Fees. Customer will pay all fees ("Fees") for the use of the Platform and the rights granted under this Agreement in accordance with the applicable Order Form or Content Request. Unless stated otherwise in the Order Form, all invoices shall be paid by Customer within 14 days from invoice date.
4.2 Overdue Fees. If any Fees payable by Customer to Company pursuant to this Agreement are more than seven (7) days overdue, Company may also charge any additional costs incurred in collecting such overdue Fees, including, without limitation, reasonable legal fees and expenses. Notwithstanding the above, Customer shall pay a late charge at the lesser of 1.5% per month or the highest amount permitted by applicable law on all Fees past due.
4.3 Purchase Orders. Any terms and conditions on any purchase orders or other documents submitted to Company with terms that conflict with those in the Order Form, Content Request or this Agreement are not binding on Company and are null and void.
4.4 Online Subscription. Upon registering for a paid subscription plan, as further described on our Site, you acknowledge that the Services have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. CLEARVOICE MAY SUBMIT MONTHLY OR ANNUAL (AS APPLICABLE) CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY CLEARVOICE) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE CLEARVOICE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, PLEASE SEND US AN EMAIL TO THE FOLLOWING ADDRESS: ACCOUNTING@CLEARVOICE.COM.
A receipt for the subscription fee will be issued on a monthly basis (based on the chosen paid subscription plan), starting on the date you registered to a paid subscription plan. All receipts will include the subscription fee for a one (1) month period of use. We will continue invoicing you monthly until this Agreement is terminated. All of our receipts will be sent to you, or to a billing contact whose details are provided by you ("Billing Contact"), by email. You are responsible for payment of all taxes in addition to the subscription fee.
We may change the amount of the subscription fee at our sole discretion from time to time subject to an advance notice to you. If you don't agree to the new subscription fee, you may cancel your subscription subject to the terms described below. We may also offer users free trials, special discounts and/or waive certain subscription fees, subject to our sole discretion
We use a third-party payment processing company ("Payment Processor") to bill you through a payment account linked to your account for use of the Services, as well as to enable processing of payments made to you for receipts tendered by You. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms.
We are not responsible for errors by the Payment Processor. By choosing to register to a paid subscription plan, you agree to pay us, through the Payment Processor, all charges at the prices then in effect in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (your "Payment Method"). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it or its Payment Processor makes even if it has already requested or received payment.
Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Services.
The subscription will automatically renew for an additional term of the number of months of the initial term (each, a "Renewal Term" and, together with the initial term, the “Term”). At any time up to thirty (30) days prior to the expiration of the then-current Term, Customer may request cancellation of the Renewal Term in writing in the Platform or via email email@example.com and the subscription will terminate upon the conclusion of the then-current Term.
5. Support Services.
If Customer cannot answer a technical question raised by a Customer User relating to their use of the Platform, then an Administrator shall notify Company and Company shall use commercially reasonable efforts to provide an answer to the Administrator.
6. Suspension of the Platform.
6.1 By Customer. If Customer becomes aware of a Customer User's violation of this Agreement, Customer will suspend the applicable Customer User's access to the Platform. If Customer fails to suspend a Customer User's access pursuant to this paragraph, then Company reserves the right to do so. The suspension of a Customer User's access will continue until Company is reasonably satisfied that the applicable Customer User has cured the breach which caused the suspension and Customer pays to Company any damages incurred by Company due to the Customer User's breach.
6.2 By Company. If Customer materially breaches the terms of this Agreement, including any failure to pay any Fees, Company reserves the right to suspend Customer's use of the Platform, or particular components of the Platform, without notice until the breach is cured or Company terminates this Agreement.
6.3 For Emergency Security Issues. If there is an Emergency Security Issue, Company may immediately suspend the offending use. Suspension will be to the minimum extent and duration that Company deems to be required to prevent or terminate the Emergency Security Issue. If Company suspends a Customer User, Company will provide Customer the reason for the suspension as soon as is reasonably possible.
7. Limitation of Liability.
7.1 Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOST PROFITS OR REVENUES, EQUIPMENT DOWN-TIME, LOSS OF DATA, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND OF COMPANY'S LICENSORS.
7.2 Limitation on Amount of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, COMPANY'S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE LIABILITY.
7.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations or violations of a Party's Intellectual Property Rights by the other Party.
8.1 Notices. All notices provided pursuant to this Agreement will be in writing and deemed effective upon delivery. Notices will be deemed to have been delivered if addressed to the Chief Executive Officer of recipient at the address set forth in the Order Form or received at a facsimile number or email address provided by the recipient on (a) the date of personal delivery or confirmed facsimile or email transmission, (b) five days after deposit in the United States mail, first class, postage prepaid, certified and return receipt requested, or (c) one day after deposit with a reputable national overnight courier service. A Party may designate a different address or facsimile number for the delivery of notices upon ten (10) days' prior written notice to the other Party.
8.2 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, not to be unreasonably withheld, except (a) to an Affiliate, or (b) in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a direct competitor of the other Party. In the event of a permissible assignment under this Agreement, the assignee must agree in writing to be bound by the terms of this Agreement and the assigning Party must notify promptly the other Party of the assignment. Any other attempts to assign this Agreement are null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
8.3 Force Majeure. Except for payment of amounts when due under this Agreement, neither Party will be liable for inadequate performance to the extent caused by a "Force Majeure Event" (defined below), provided that the affected Party resumes full performance as promptly as possible following the Force Majeure Event. “Force Majeure Event” means the existence of a condition that is beyond a Party's reasonable control, for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance.
8.4 No Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.
8.5 Severability. In the event that any provision of this Agreement is deemed unlawful or otherwise unenforceable by any tribunal of competent jurisdiction, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Each and every provision or restriction set forth in this Agreement is independent and severable from the others, and no provision or restriction will be rendered unenforceable by virtue of the fact that, for any reason, any other provision or restriction may be unenforceable in whole or in part.
8.6 No Agency. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
8.7 No Third-Party Beneficiaries. Except as expressly set forth in the indemnification provisions as set out in the Company's Terms of Service, there are no third-party beneficiaries to this Agreement.
8.8 Governing Law and Disputes. This Agreement, and any disputes arising out of or related to this Agreement, will be governed exclusively by the laws of the State of Delaware, without regard to conflicts of laws principles or the United Nations Convention on the International Sale of Goods. Except for the rights granted in the Equitable Relief provision as set out in the Company's Terms of Service, any and all disputes of any kind or nature arising out of or related to this Agreement will be decided by arbitration conducted under the commercial arbitration rules of the American Arbitration Association. The arbitration will take place in Phoenix, Arizona. The Parties will act in good faith to select a single arbitrator. If the Parties do not agree on an arbitrator within twenty (20) days of a Party initiating arbitration, then the American Arbitration Association will select the arbitrator. The decision of the arbitrator will be final and binding, and not subject to appeal for any reason. The arbitrator will award attorneys' fees, costs, and all costs and fees of the American Arbitration Association to the prevailing Party in the arbitration as determined by the arbitrator. The arbitration award or other orders can be confirmed and/or enforced through the courts in Maricopa County, Arizona. THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, AND WAIVE ALL OBJECTIONS TO FORUM IN, THE COURTS IN MARICOPA COUNTY, ARIZONA.
8.9 Waiver of Jury Trial. Each Party hereby waives any right to a jury trial in connection with any action or litigation arising out of or related to this Agreement.
8.10 Amendments; Interpretation. Any amendment to this Agreement must be in writing and expressly state that it is amending this Agreement. The titles of sections and subsections contained in this Agreement are for convenience only. They form no part of this Agreement and they are not to be used in the construction or interpretation of this Agreement. Any and all uses of the word “including” in this Agreement mean “including without limitation.”
8.11 Survival. Sections 3.5, 4.1, 7 and 8 survive the expiration and termination of this Agreement.
8.12 Entire Agreement. This Agreement, including all Exhibits and all documents referenced herein and hereby incorporated by reference, is the Parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
8.13 Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF or other electronic copies, each of which will be considered an original, and all of which together will constitute one and the same instrument.