Goodbeast will provide experiential marketing and other services of a marketing and technology nature at Client’s general direction. Client will pay Goodbeast a non-refundable deposit on the first of every month for the rendition of Services. Goodbeast will not incur costs in excess of the retainer amount without Client’s prior approval. At the beginning of each month, Goodbeast will present a budget for staff labor and third-party costs. Goodbeast will provide a reconciliation of the staff labor and third-party costs incurred and provide an invoice for any additional hours authorized at the end of each month. Before incurring any third-party costs, Goodbeast will provide an Estimate for authorization.
Services. GOODBEAST will provide marketing, content creation, product design and engineering, software development, and consulting services to Client from time to time, as described in each Statement of Work executed by the parties and attached hereto and incorporated by reference (the “Services”), which may take the form of an executed Proposal or Estimate. Unless otherwise stated herein, if any terms or conditions of a Statement of Work conflict with the terms and conditions of this Agreement, this Agreement shall prevail. All Services to be performed by GOODBEAST shall be performed in a manner consistent with industry standards and in accordance with all applicable laws.
Payment. In consideration of the Services, Client shall timely pay to GOODBEAST the amounts as set forth on each Statement of Work for fees associated with the performance of the Services. Unless otherwise stated in the Statement of Work, invoicing will be monthly over the project duration for the items completed during that month. GOODBEAST shall not bill for fees in excess of the agreed fees on a Statement of Work without the prior written consent of Client. All out-of-pocket expenses will be paid to GOODBEAST by Client if incurred in connection with the performance of the Services, including travel, hotel, meal expenses and services or goods obtained on behalf of Client from third parties. Production materials including, but not limited to, fonts, original artwork, photography, audio, video and vended production services will be secured by GOODBEAST as needed based on Client’s specified usage and billed to Client with GOODBEAST’s standard mark-up of 20%. GOODBEAST will provide estimated costs and licensing terms for prior approval by Client. GOODBEAST will negotiate and secure the appropriate licenses for usage rights of the above elements. Paid media costs will be billed to Client at GOODBEAST’s standard mark-up of 15%. Purchases and services on your behalf of an administrative nature are billed net, without markup. These include: 1. minor administrative costs such as courier delivery, package express, import duties, and other significant office expenses of a miscellaneous nature; and 2. any and all travel and lodging costs incurred by GOODBEAST for production supervision or for attendance at client meetings, trade shows, conventions, sales meetings, seminars, or market research projects. All invoices shall be sent by GOODBEAST to Client at Client’s address first set forth above or electronically as the parties may agree. Pass-through and production materials costs will be invoiced as incurred and are due upon receipt. GOODBEAST reserves the right to require pre-payment on certain production material and services costs as required by outside vendors. GOODBEAST requires pre-payment of all traditional and digital media buys made on behalf of Client prior to delivery of creative assets. All invoices for media costs are due upon receipt. A signed Media Estimate is also required prior to GOODBEAST executing any contracts with traditional or digital media vendors. Unless otherwise specified, Client shall pay amounts due pursuant to each invoice within 30 days following receipt by Client of each invoice. Failure to timely pay any submitted bill may result in the discontinuance of Services without liability of GOODBEAST therefore. If any terms or conditions in this paragraph 2 conflict with the Statement of Work, the Statement of Work shall prevail.
Confidentiality. GOODBEAST shall, during the term of this Agreement and thereafter, hold in confidence, and not use, except for the benefit of Client, and not disclose to any person or entity without written authorization of Client, any Confidential Information of Client. As used herein, “Confidential Information” means any of Client’s proprietary or confidential information, technical data, trade secrets or know-how, whether disclosed or provided in oral, written, graphic, electronic, photographic or any other form and whether disclosed to, or observed by, GOODBEAST during visits to Client’s facilities or in connection with performing the Services, and including without limitation all (i) existing or proposed research and development efforts; (ii) inventions, patent applications, structures, models, techniques, processes, assays, formulations, compositions, compounds, and apparatus; (iii) product specifications, designs, plans, ideas and concepts; (iv) marketing, distribution and sales methods and systems, sales and profit figures, finances and other business information; and (v) all analyses, compilations, studies or other material prepared by GOODBEAST containing or based in whole or in part upon such information furnished to GOODBEAST by Client. Confidential Information shall be that which would be reasonably calculated to cause harm to the business or goodwill of Client if disclosed by GOODBEAST without authorization. Confidential Information does not include any of the foregoing which has become publicly known and made generally available through no wrongful act of GOODBEAST, or which GOODBEAST can reasonably establish was known to it prior to learning of it from Client, or was created by GOODBEAST for general application for other GOODBEAST clients, current and prospective.
Indemnity. Client agrees to indemnify, save and hold harmless GOODBEAST from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances GOODBEAST shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) GOODBEAST provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by GOODBEAST in providing such assistance. Subject to the terms, conditions, express representations and warranties provided in this Agreement, GOODBEAST agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with GOODBEAST’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies GOODBEAST in writing of the claim; (b) GOODBEAST shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide GOODBEAST with the assistance, information and authority necessary to perform GOODBEAST’s obligations under this section. Notwithstanding the foregoing, GOODBEAST shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by GOODBEAST.
Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF GOODBEAST ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF GOODBEAST, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“GOODBEAST PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF GOODBEAST FOR SERVICES RENDERED IN THE PERFORMANCE OF THE APPLICABLE STATEMENTS OF WORK TO THE CLIENT. IN NO EVENT SHALL GOODBEAST BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY GOODBEAST, EVEN IF GOODBEAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Ownership of Works. Upon payment therefore, GOODBEAST hereby assigns, transfers and conveys to Client, or its designee, all of GOODBEAST’s worldwide right, title, and interest in and to any and all inventions, original works of authorship, findings, conclusions, data, discoveries, developments, concepts and improvements, whether or not patentable or registrable under copyright or similar laws, which GOODBEAST created specifically for, and in the performance of, Services hereunder (collectively, the “Work” or “Works”). Copyrightable Works created by GOODBEAST specifically for Client in performance of Services are “works made for hire,” as that term is defined in the United States Copyright Act. However, to the extent that any such Work may not be considered a work made for hire, GOODBEAST hereby assigns, transfers and conveys to Client all of its worldwide right, title and interest in and to such Work, including all intellectual property rights therein and appurtenant thereto. From time to time, Works may be created by third parties hired by GOODBEAST for that purpose. In such cases, GOODBEAST shall, at Client’s request ask that copyright and all other rights held by the creator be transferred and shall notify Client of the result of such request. Anything to the contrary herein notwithstanding, GOODBEAST may display or publish the Works solely to demonstrate GOODBEAST’s capabilities. GOODBEAST may identify Client as a business it is providing Services to, describe in broad terms the nature of the Services provided for Client, and may include representations of the Works, during and after the term of this Agreement; provided, however, GOODBEAST shall not disclose Confidential Information of Client.
Termination. This Agreement may be terminated by either party, for any reason, upon sixty (60) days written notice given to the other party; provided, however, that unless otherwise provided in a Statement of Work, a Statement of Work may only be terminated by a party before completion of the Services called for therein absent material breach by a non-terminating party. Either party may terminate this Agreement for material breach in which event, the non-breaching party shall give written notice to the other party specifying in reasonable detail the nature of the breach, including failure to make timely payments. If breach is due to failure to timely pay any sum due, GOODBEAST need not provide Services during the notice period, and if Client has not cured this breach within ten (10) days of receipt of the notice of breach, then GOODBEAST shall have the right to terminate the Statement of Work and this Agreement. If Client believes GOODBEAST is not adequately providing the Services, Client shall provide GOODBEAST with detailed written notice of the deficiency and forty-five (45) days to cure. Failing such cure, Client may terminate this Agreement at the conclusion of forty-five (45) days. In the event of termination of any Statement of Work, Client shall remain responsible for all fees for Services performed through and including the date of termination, all reimbursable expenses incurred as well as payment for all non-cancelable obligations reasonably entered into by GOODBEAST on behalf of Client. The provisions of paragraphs 3, 4, 5, 7 and 8 shall survive the expiration or sooner termination of the term of this Agreement or any Statement of Work.
Return of Property. Promptly upon the expiration or sooner termination of this Agreement, and earlier if requested by Client, GOODBEAST shall deliver to Client (and will not keep in GOODBEAST’s possession or deliver to anyone else) all Confidential Information of Client and all records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by GOODBEAST as part of or in connection with the Services or otherwise belonging to Client, unless, however, such requests inhibits the performance of Services for an outstanding Statement of Work in which case such items shall be returned when Services in connections with the Statement of Work have been rendered, or unless such items have not been then paid for, provided that upon payment therefor they shall be delivered.
Governing Law. This Agreement is made in the District of Columbia, United States of America, and shall be construed and governed in accordance with the internal laws of the District of Columbia, USA without regard to principles of conflicts of law. The parties, on behalf of themselves and their successors and assigns, agree and consent that any action or proceeding relating to this Agreement shall be commenced and maintained solely and exclusively in the courts located in the District of Columbia to the exclusion of any other court. Nothing contained herein shall prevent the parties from mutually agreeing to mediate or arbitrate a dispute on whatever terms they mutually agree to.
Independent Contractor. GOODBEAST’s status under this Agreement and any Statement of Work issued herewith will be that of an independent contractor; anything in this Agreement to the contrary notwithstanding neither GOODBEAST nor anyone GOODBEAST furnishes or uses to perform Services hereunder shall be considered an employee, joint venturer, partner or servant of Client. Unless directed to the contrary in writing, in the acquisition of approved services and goods from third parties for the benefit of Client, GOODBEAST shall be considered an agent for a disclosed principal, and Client shall be solely responsible for payment, or reimbursement, of all sales and use taxes incurred by GOODBEAST and any commitments with third parties made with Client’s agreement.
Entire Agreement. This Agreement and all Statement of Works issued and accepted hereunder constitute the entire Agreement between the parties respecting the Services expected to be rendered by GOODBEAST to Client. Except as may be otherwise provided by an exhibit to this Agreement, or a Statement of Work, this Agreement supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between GOODBEAST and Client, whether oral or written in relation to the Services. This Master Services Agreement may be amended only by an instrument in writing executed by the parties hereto.
Binding Effect. This Agreement and any Statement of Work issued hereunder shall be binding upon and inure to the benefit of the parties hereto and their successor and permitted assigns. Neither party shall have the right to assign this Agreement or any rights or delegate any of the obligators hereunder without the prior written consent of the other party; provided however, that Client may, without the consent of GOODBEAST, assign this Agreement to any party that (a) acquires all or substantially all of the stock or assets of Client, or (b) acquires, whether by license, divestiture or otherwise, all or substantially all of Client’s assets which are the subject matter of this Agreement. Any unauthorized attempt to assign or delegate any portion of this Agreement shall be void.
Notices. Any notices which any party may be required or shall desire to give hereunder shall be in writing and deemed to be effective when delivered personally or mailed by certified or registered mail, postage prepaid, or by a nationally recognized overnight carrier, to the party to whom notice is to be given at the address first given above or such other address or addresses of which such party shall have given written notice.
Severability. Should any valid federal or state law or final determination of any administrative agency or court of competent jurisdiction invalidate or otherwise affect any provision of this Agreement, the provision or provisions so affected shall be conformed automatically and to the extent possible to the law or determination in question, and in all events the remaining provisions of this Agreement shall continue in full force and effect.
Currency. Except as otherwise indicated, all references in this Agreement or in any Statement of Work to “dollars” or “$” shall mean the lawful currency of the United States.