1. General. These Terms and Conditions together with the agreement to which these Terms and Conditions are attached (the “Master Agreement”), as well as all Schedules attached thereto, shall form a binding agreement (the “Agreement”) between BSD and the Client. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Cover Agreement.
2. Fees. Client agrees to compensate BSD as set forth on the Fee Schedule. In addition, Client shall reimburse BSD its actual out-of-pocket expenses reasonably incurred in connection with its performance of the Services. BSD shall bill Client on a monthly basis or as otherwise set forth on the Fee Schedule; provided however, BSD shall invoice Client in advance on estimate for third party production or media services. Client shall pay all invoices within thirty (30) days of receipt or on any regularly scheduled payment date, and with respect to production and media invoices, in time for BSD to meet its payment obligation(s) to the applicable third party. Any invoice not paid within such thirty (30) day period, on such regularly-scheduled date or, otherwise, on any other mutually-agreed upon date, will be considered delinquent, and a late payment charge of the lesser of one and one-half percent (1.5%) of the delinquent balance or the maximum amount permissible by law will be assessed per month that amounts under such invoice remain delinquent. In addition, BSD may at its election suspend Client's account and/or BSD's services to Client, to the extent that (a) any Client fees are more than 30 days past due and/or (b) Client incurs fees in any given month that exceed the greater of (i) $2500.00 or (ii) three times the prior month's fee. In the event of such suspension, BSD will restore functionality upon payment of outstanding fees.
3. Limited Agent. In purchasing materials, services and/or rights for Client, BSD is acting as agent for a disclosed principal. Accordingly, BSD shall have the right to purchase all third party services and materials under the principle of sequential liability, where BSD will be held liable for payments to third party vendors and suppliers only to the extent BSD has been paid by Client for such purchases. For amounts owing but not paid and cleared to BSD, Client agrees that it will be held solely for such payments. BSD has the right to confirm with third party vendors and suppliers that they expressly agree to payment on such terms.
4. BSD’s Limited Warranties and Warranty Disclaimer. BSD warrants to Client that BSD’s performance of the Services pursuant to this Agreement, to its knowledge, does not and shall not violate any applicable law, rule or regulation and that the Services will be performed in accordance with the highest industry standards. Client acknowledges and agrees that BSD shall not be responsible, or liable in any way, to conduct trademark clearance searches in connection with any trademark, logo, slogan or other identifier presented by it to Client; provided however, BSD shall not present Client with any trademark, slogan, logo or other identifier to the extent BSD has actual knowledge that presentation of same would violate the trademark rights of any third party. THE FOREGOING EXPRESS WARRANTIES SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
5. Term and Termination. The term of this Agreement shall begin on the Effective Date and shall continue as set forth in the accompanying Schedules.
(i). In the event either party is in breach or default of any material term of this Agreement, and said breach or default continues unremedied for a period of thirty (30) days after such party’s receipt of written notice from the other party specifying the grounds of such breach or default, then in addition to all other rights and remedies at law or in equity, the other party will have the right to terminate this Agreement immediately upon written notice to the breaching/defaulting party.
(ii). In the event either party becomes insolvent, makes an assignment for the benefit of creditors, files a petition for bankruptcy, is the subject of a petition in bankruptcy which is not dismissed within ninety (90) days from the filing thereof, becomes the subject of any receivership proceeding or admits in writing its inability to pay its debts generally as they become due, the other party may immediately terminate this Agreement by written notice of termination to the insolvent party.
(iii). During the period of time after a party has given written notice to the other party under the terms of this Agreement until the effective date of termination, the rights, duties, obligations and liabilities of the parties pursuant to this Agreement shall continue in full force and effect, including without limitation the payment of compensation set forth herein.
(iv). Upon termination, Client shall pay BSD all fees and expenses that have been incurred or earned in connection with the performance of the Services through the effective date of such termination.
(v). The sections herein, which by their terms are intended to survive the expiration or termination of this Agreement, shall survive expiration or termination.
6. Infringement Indemnification by BSD.
BSD hereby agrees to indemnify, hold harmless and defend Client from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys’ fees) (collectively “Liabilities”), asserted against Client by a third party to the extent such Liabilities result from the infringement by the Deliverables on such third party’s trade secret, trademark (solely to the extent of BSD’s representation regarding trademarks in Section 4 above) or copyright as of the date of this Agreement; provided, that Client (i) promptly notifies BSD of any third party claim that may give rise to indemnification hereunder, (ii) gives BSD the right to control and direct the preparation, defense and settlement of any such claim and (iii) cooperates fully with BSD in the defense of such claim. The foregoing provisions shall not apply to any infringement arising out of or in connection with: (a) use of the Deliverables other than in accordance with the instructions of BSD or in violation of any third party license restrictions or (b) any alteration, modification or revision of the Deliverables not expressly authorized in writing by BSD. For the avoidance of doubt, in no event shall BSD have any liability hereunder (including without limitation, this Section 6), in connection with third party claims of patent infringement.
If any of the Deliverables is held, or in BSD’s reasonable opinion is likely to be held to infringe on a third party’s rights, BSD may within a reasonable time, at its option, either: (i) secure for Client the right to continue the use of such infringing Deliverable; or (ii) replace, at BSD’s sole expense, such Deliverable with a substantially equivalent non-infringing Deliverable or modify such Deliverable so that it becomes non-infringing. In the event BSD is, in BSD’s reasonable discretion, unable to either procure the right to continued use of the allegedly infringing Deliverable or replace the allegedly infringing Deliverable as provided in clauses (i) and (ii) of the immediately preceding sentence, the allegedly infringing Deliverable shall be returned to BSD, and BSD’s sole liability shall be to refund to Client the amount paid to BSD for such Deliverable.
The provisions of this Section 5 state BSD’s entire liability and Client’s sole and exclusive remedy with respect to any infringement or claim of infringement.
7. Indemnification of BSD. Client shall be responsible for the accuracy, completeness and propriety of information concerning its organization, products and services (including without limitation, any information, disclosures or requirements which are imposed upon Client as a result of its business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding, whether within the United States or in any non-United States jurisdiction), and, to the extent it furnishes information to BSD regarding its competitors' products and services, Client shall also be responsible for BSD’s use of, and/or reliance upon, such information. Client shall review all materials prepared by BSD under this Agreement to confirm that descriptions and representations, direct or implied, with respect to Client’s organization, products, services, industry and competitors are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives and guidelines. Client shall furnish BSD with adequate substantiation for all such descriptions or representations as BSD may reasonably request. Client hereby agrees to indemnify, hold harmless and defend BSD, its affiliates, successors, assigns, and their respective owners, officers, directors, employees, and agents, jointly and severally, from and against any and all Liabilities which any of them may incur arising out of or in connection with (i) any data, information or other content provided to BSD or otherwise supplied by Client, including without limitation, claims based on libel, defamation, invasion of privacy, and infringement of any intellectual property right, (ii) any breach by Client of any law or regulation, (iii) any breach by the Client of any of the terms of this Agreement, and (iv) any negligent or wrongful act or omission by the Client. To the extent that the Client is a federal, state or municipal government authority, agency or subdivision thereof, and applicable laws limit the right of the Client to provide indemnification, the Client will provide such indemnification to the fullest amount permitted by law.
8. Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DAMAGES (OTHER THAN DAMAGES ARISING FROM CLIENT’S NON-PAYMENT OF FEES TO BSD) IN EXCESS OF THE TOTAL FEES PAID BY THE CLIENT TO BSD UNDER THIS AGREEMENT DURING THE MOST RECENT 12-MONTH PERIOD. No action, regardless of form, arising out of or in connection with this Agreement may be brought more than one (1) year after the first to occur of (i) the termination or expiration of this Agreement or (ii) the event giving rise to such cause of action.
9. Confidential Information. Either Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, personnel, planning, and other information (“Confidential Information”). The Disclosing Party shall mark all such Confidential Information in tangible form with the term ‘confidential,’ ‘proprietary,’ or with a similar legend. The terms of this Agreement shall be considered Confidential Information. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party, and shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement. Notwithstanding anything herein to the contrary, the restrictions set forth above shall not apply to any information which: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was or has been disclosed by the Disclosing Party to a third party without obligation of confidence; (c) was or becomes lawfully known to the general public without breach of this Agreement; (d) is independently developed by the Receiving Party without access to, or use of, the Confidential Information; or (e) is required to be disclosed by law or by the order or a court or similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto. Upon termination or at any time upon the request of the Disclosing Party, the Receiving Party shall return (or if requested by the Disclosing Party, destroy), all Confidential Information of the Receiving Party then in its possession; [provided however, BSD may retain archived electronic communications and archival copies, and shall not be required to purge information archived pursuant to its normal document retention practices or required to be maintained by applicable law or the audit provision of this Agreement.]
10. Attestation of Compliance With Payment Card Industry Data Security Standard (“PCI” “DSS”). BSD is certified PCI DSS Level 1 Compliant and conducts business according to Level 1 of the Payment Card Industry Data Security Standard. The PCI Security Standard Council may enhance the PCI DSS as needed to ensure that the standard includes any new or modified requirements necessary to mitigate emerging payment security risks. If card holder data is maintained within the BSD database application, both parties agree to abide by current PCI Data Security Standards at all times in conjunction with this Agreement. BSD at no time shall be considered the Merchant for cardholder data. Client will supply or otherwise obtain necessary merchant accounts and its own PCI DSS Certification in accordance with its own bank(s) and issuing merchant services. Policies, procedures, technical systems and handling of cardholder data must be validated and in accordance with the PCI Data Security Standard by both parties. Cardholder data storage access is restricted to a business need to know and only cardholder data with a legitimate business reason may be stored in the BSD database application.
11. "As Is" Basis. Except for the express warranties set forth herein, the services and all third party data is provided on an "as is" basis. BSD makes no representation, warranty, or guaranty as to the reliability, compatability, timelieness, quality, suitability, truth, availability, accuracy, or completness of the services or any data.
12. No Agency. Except as set forth in Section 3 above, nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
13. Adequate Rights. The Client represents and warrants that it has obtained all rights in data captured via the BSD Toolset or otherwise provided to BSD under this Agreement necessary to grant the rights contemplated by this Agreement.
14. Marketing. Our approach to marketing is to produce promotions that will be of mutual value and benefit to both BSD and the Client and look forward to working together to achieve shared goals. Once our work is launched to the public, BSD shall have the right to include written and visual references to the work with the Client in its marketing and promotional materials upon consent from Client. BSD will not disclose confidential or sensitive information highlighted by Client. If Client produces a PR or promotional campaign about our work, Client agrees to give credit to BSD for the work and include agreed upon boilerplate language. This provision shall survive termination.
15. Government Requirements; Export Restrictions. The Client agrees that it will not ship or divert for use in any country any technology or technical data subject to this Agreement in contravention of the laws and regulations of the United States.
16. Governing Law/Arbitration. This Agreement shall be governed in all respects by the laws of the State of New York without regard to its conflicts of law principles.
Any dispute, claim, question, or disagreement arising from or relating to the parties relationship and/or this Agreement or breach thereof, or if a controversy should arise between the parties outside of this Agreement with anyone (including a party’s employee, officer, director, or stockholder in their capacity as such or otherwise) (“Claim”), such Claim shall be settled in arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. Arbitration is the sole, mandatory and exclusive procedure for resolving Claims covered hereunder. The resolution of any Claim by arbitration herein shall be final and binding on the parties to the fullest extent permitted by law. Neither party shall seek to enjoin any proceeding hereunder on the basis that any award resulting there from would not be enforceable. The place of arbitration shall be New York County, New York. The Arbitrator shall apply substantive law (and the law of remedies, if applicable) of the State of New York or federal law, or both, as applicable to the claim(s) asserted. The Arbitrator will have no authority to award consequential, punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. In no event shall an award in arbitration initiated under this clause exceed the value of this Agreement. The arbitration, nature of dispute, and the bringing of the claim shall be confidential and closed to third parties and the public. Any evidence proffered in the arbitration shall be held in strict confidence, not disclosed to any third party and subject to the confidentially section of this Agreement.
17. Forum. Where the Client is the plaintiff, the State and Federal Courts located in New York, NY shall have exclusive jurisdiction over disputes under this Agreement; where BSD is the plaintiff, the State and Federal Courts located in the county and state of the Client’s principal place of business shall have exclusive jurisdiction over such disputes. The parties hereby consent to the personal jurisdiction of such courts.
18. Non-Solicitation. During the Term, and for a period of twelve (12) months thereafter, Client shall not directly or indirectly employ, offer to employ any current or former employee or independent contractor of BSD nor encourage any current or former employee or independent contractor of BSD to terminate their engagement with BSD.
19. Notices. In any case where any notice or other communication is required or permitted to be given hereunder, such notice or communication will be given in writing by personal delivery, registered mail, facsimile, email, or national overnight delivery service, addressed to the respective Party at the addresses indicated below. All such notices or other communications will be deemed to have been given and received (i) upon receipt if personally delivered or sent by registered mail; (ii) when delivery is confirmed if sent by overnight delivery service; (iii) on the transmission date for facsimile and email communications, if such transmission is error-free and such communication is confirmed by a copy sent first class mail.
20. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, acts of terrorism, war, governmental action, labor conditions, earthquakes, material shortages, communications network interruption or any other cause which is beyond the reasonable control of such party, including acts or omissions of third parties that may house BSD’s servers, or of third party hackers or other third party malicious acts. Additionally, Client acknowledges and agrees that while BSD shall endeavor to ensure the performance of, and protect against failures by, third party suppliers and vendors of goods and services, in no event shall BSD be responsible in connection with the acts or omissions of such third parties; unless and solely to the extent that any such failures result from a failure by BSD to perform any of its obligations hereunder (or otherwise from BSD’s gross negligence).
21. Taxes. All fees, expenses and other amounts payable to BSD hereunder do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment of which shall be the sole responsibility of Client (excluding any applicable taxes based on BSD’s net income or taxes arising from the employment or independent contractor relationship between BSD and its personnel).
22. No Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
23. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
24. Assignment. Neither this Agreement nor any rights or obligations of any party hereunder may be assigned by either party without the prior written approval of the other parties; provided, however, that a party shall be permitted to assign this Agreement in whole to a third party in connection with the sale of all or substantially all of that party’s assets comprising the business unit to which this Agreement relates.
25. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
26. Entire Agreement. These terms and conditions, together with the Cover Agreement and all exhibits and schedules attached thereto completely and exclusively states the agreement of the parties regarding its subject matter, and supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a written amendment signed on behalf of each of the parties.