SELF SERVICE MASTER SERVICES AGREEMENT
Last update: 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 Self-Service. Subject to the terms and conditions of this Agreement, when Self Service is requested by Customer, Customer may use the Platform to develop its own marketing programs and to commission works from Creators using a Customer Content Request. Customer's use and acquisition of Content is between Customer and the User or Creator responsible for generating that Content and Company shall not be obligated to create any Content for Customer under this Agreement except as set forth in an Order Form. Unless stated otherwise in this Agreement or in the Order Form, Company does not provide any warranty, review, inspection, fact-checking, vetting, or editing for any Content under this Agreement, regardless of whether the Content is available through the ClearVoice Platform. In either event, Company's sole duty is to provide the Platform for Customer's access and use, and Customer is solely responsible for Customer's internal management, administration and use of the Platform.
1.2 Content Request. If Customer submits a Customer Content Request to a Creator or Producer or Directly to ClearVoice (where applicable), and Customer fails to accept, submit a revision request or reject Content created by the Creator or Producer (or a brief suggested by ClearVoice) within five (5) business days after Customer's receipt of the Content, then such Content shall be deemed to have been approved by Customer. Customer agrees that it will not publish, distribute or otherwise use Content submitted by a Creator or Producer until such Content has been approved by Customer in the Platform.
1.3 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.
1.4 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, 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.
1.5 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 Development 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.
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.
5. Support Services.
5.1 By Customer. Self-Service Customers will, at its own expense, respond to technical questions raised by Users relating to their use of the Platform. Customer will use commercially reasonable efforts to answer technical questions brought to its attention on its own, without notification to Company.
5.2 By Company. 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.
Except as otherwise set forth in an Order Form, Company does not provide any warranty, review, inspection, fact-checking, vetting, or editing for any Content under this Agreement, regardless of whether the Content is available through the Platform. THE CONTENT IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND SUITABILITY OF CONTENT IS SOLELY WITH CUSTOMER. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, AND WARRANTIES OF QUALITY AND ACCURACY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
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.