This MASTER DIGITAL SERVICES AGREEMENT (the "Agreement") is entered into the Effective Date noted on the applicable Scope of Work (SOW), by and between Mailtropolis, LLC, d/b/a WE ARE KYMERA, a Florida limited liability company ("Kymera"), having its principal place of business at 10219 General Drive, Orlando, Florida 32824 and Client. Kymera and Client are collectively referred to as the "Parties" and individually as a "Party". Capitalized terms not otherwise defined herein shall have the meaning set forth in Section 17 (DEFINITIONS) of this Agreement.
In exchange for the covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which each Party hereby acknowledges, the Parties agree as follows:
1. Scope of Services and Deliverables; Change Order; Schedule
1.1 Scope of Work.
During the Term of this Agreement, Kymera agrees to provide the Services and Deliverables to Client as an independent contractor. The Services and Deliverables to be provided by Kymera to Client shall be more fully set forth in a Scope of Work ("Scope of Work" or "SOW") with each SOW executed by the Parties. Each SOW will include a description of the Services and Deliverables to be provided, details related to the term, duration or frequency of the Services, and fees and costs associated with the Services and Deliverables. Every SOW will reference this Agreement and all of the terms contained in the Agreement will be a part of the SOW and each SOW will be incorporated by reference into this Agreement.
1.2 Change Order.
The SOW may be modified, amended or supplemented only by written agreement mutually agreed to by the Parties in a Change Order. Kymera shall determine the appropriate cost, description of Services, and/or schedule and incorporate these changes into this Agreement by executing a change order ("Change Order"). At times, Client and Kymera may find it to be advantageous and in the best interests of Client to shift the allocation of Kymera staff and resources from one previously purchased Service offering to another previously purchased Service offering. In the event that the Parties determine an adjustment in Service offerings is appropriate, such adjustment shall be set forth and agreed to in a Change Order.
1.3 Schedule.
Kymera may provide an estimated schedule of performance in a SOW, or at a later date. Client acknowledges that Kymera's ability to provide the Services and Deliverables and meet any schedule provided to Client is dependent upon the full and timely cooperation of Client, and Client's timely provision of Client Materials (if any) to Kymera. Accordingly, Client shall provide Kymera with the Client Materials or access to, and use of, the Client Materials and all other information, data and documentation reasonably required by Kymera for the performance of its obligations under this Agreement, as set forth in the SOW.
2. Payment
2.1 Pricing, Fees, and Payment.
Client shall pay Kymera all fees for Deliverables and Services in the amount and frequency as described in the SOW. Kymera shall invoice Client the amounts due for the Services and Deliverables. For certain Services, including but not limited to Hosting Services, Client shall be required to keep a credit card on file with Kymera, or pay the amounts specified in the SOW in advance. Unless expressly stated otherwise on the SOW, fees shall be due and payable upon receipt of each invoice. Client shall pay Kymera a late fee of five percent (5%) per month on all amounts thirty (30) days past due. Kymera may suspend the Services or provision of the Deliverables for any amounts due not received within sixty (60) days of the receipt of the invoice. Payment shall be made at the address or bank account set forth on the invoice provided to Client. Client will pay all amounts due under the SOW in U.S. Dollars.
2.2 Taxes, Fees and Payment.
Local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties ("Taxes") for purchase of the Services and Deliverables shall be in addition to the fees identified and payable under the SOW. Client shall be responsible for and pay all such Taxes.
2.3 Fees for Third-Party Provider Services.
Client acknowledges that some Third-Party Providers may charge a one-time or monthly fee for use of their services, license fees, continued maintenance fees and/or performance fees. In some instances, Client shall be solely responsible for the cost of such Third-Party Provider services and will be billed for such services directly by the Third-Party Provider. Kymera will indicate in the SOW or notify Client when such Third-Party Provider costs are anticipated.
2.4 Price Adjustments.
Subject to the notice requirement below for recurring monthly services, Kymera shall have the right to revise the fees for the Services and Deliverables at any time. Kymera shall have the right to increase fees for any recurring monthly service that has been purchased by Client by providing thirty (30) days' written notice to Client of the future price increase. For purposes of clarity, the foregoing limitation shall not limit Kymera's ability to charge additional fees incurred by additional licensed or purchased software, services, including support and maintenance, updates, upgrades, resale Third-Party Provider products, or any additional requests by Client.
3. Intellectual Property Ownership and Licensed Rights
3.1 Ownership of Deliverables.
Subject to Kymera's retained ownership rights to Kymera's Pre-existing Intellectual Property, and any Third Party Provider's retained rights to their intellectual property, upon full payment for all the Deliverables and related Services, Client shall own the Deliverables.
3.2 License to Deliverables for Portfolio Purposes.
Client hereby grants to Kymera a royalty-free, limited, non-exclusive license to use and display graphics, artwork, logos, designs, content and other elements of the Deliverables as examples of Kymera's work product in Kymera's portfolio and in advertising, marketing and other promotional content of Kymera.
3.3 Kymera's Pre-existing Intellectual Property.
Any and all preexisting or preparatory materials including, without limitation, ideas, sketches, initial copy, concepts, proofs of concepts, research and analysis, artwork and designs ("Kymera Materials") will remain the sole and exclusive property of Kymera. Any software, algorithms, data, methods, processes, identifier codes or other technology developed by Kymera before or in connection with rendering the Services and all improvements made thereto ("Kymera Software, Tools and Methodologies") will remain the sole and exclusive property of Kymera. Kymera Materials and Kymera Software, Tools and Methodologies shall collectively be referred to herein as "Kymera's Pre-existing Intellectual Property". Client acknowledges and agrees that Kymera shall retain all ownership and title to Kymera's Pre-existing Intellectual Property developed prior to or in the course of providing Services to Client.
3.4 License to Kymera's Pre-Existing Intellectual Property.
Upon full payment for all the Services and Deliverables, Kymera grants Client a nontransferable, perpetual, worldwide, royalty-free license to use Kymera's Pre-Existing Intellectual Property to the extent incorporated in the Services and Deliverables; provided, however, that Client will have no right to use Kymera's Pre-Existing Intellectual Property apart from the Services or Deliverables or in any other manner without the prior written consent of Kymera. Client agrees not to reverse engineer, decompile or disassemble the Kymera Software, Tools and Methodologies or modify, remove or obscure any copyright notice, trademark or other notices placed by Kymera on or in the Services or Deliverables. Kymera reserves all rights in its proprietary materials that are not expressly licensed to Client hereunder.
3.5 License to Client Materials.
Client hereby grants to Kymera a royalty-free, limited, non-exclusive license: (i) to utilize the Client Materials provided by Client to Kymera in connection with and only for the provision and completion of the Services and Deliverables provided under this Agreement; and (ii) to utilize the Client Marks in connection with the Services and Deliverables, including on Client's Website, social media pages, Advertising Platforms and in press releases, advertising and other promotional material created for or on behalf of Client.
4. Term
Unless terminated sooner pursuant to this Agreement, this Agreement shall commence on the Effective Date set forth above and shall remain in effect until the completion of the Deliverables and Services under the last remaining SOW ("Term"). In the event the SOW provides for monthly recurring services, the Services shall be provided for an initial six (6) month term, and shall continue thereafter on an ongoing month-to-month basis unless terminated by either Party by providing not less than sixty (60) days' prior written notice of such termination.
5. Client Obligations and Understandings
5.1 Cooperation.
Client specifically acknowledges that certain aspects of the Services cannot be successfully accomplished without Client's: (i) active participation, cooperation and willingness to establish supporting business relationships; (ii) investment of time and effort; and (iii) provision of the Client Materials, and necessary staff time and business knowledge to allow the Services to be successfully implemented.
5.2 Independent Research.
Client acknowledges that Kymera shall not be responsible for independent research as to the accuracy of information provided by the Client as part of or in connection with the Client Materials.
5.3 Proofing.
Client is responsible for proofreading and reviewing all Deliverables produced during the Term. As a result, Client is fully responsible for any errors in spelling, typography, illustrative layout, photography or other errors discovered after the final file is delivered, printed, or reproduced, whether by Kymera or by third parties selected by Kymera.
5.4 Unlawful Acts.
Client will not use the Services to commit any illegal or defamatory acts, and Client shall comply with all known applicable federal and state laws, rules and regulations.
5.5 Website Restrictions.
In the event that Client has purchased Hosting Services from Kymera, Client will not post on Client's Website any material or content infringing the trademarks, copyrights, or other Intellectual Property Rights of Kymera or any third parties.
5.6 Timely Performance.
Client will timely and fully perform its obligations under this Agreement including, without limitation, payment of all undisputed fees and charges owed to Kymera.
5.7 Third-Party Provider Terms.
To the extent applicable, Client will abide by and comply with the terms and conditions of any Third-Party Provider Terms.
5.8 Third-Party Errors.
Client acknowledges that Kymera cannot prevent and shall have no liability for any Unauthorized Code that might be introduced from or by Third-Party Providers, or other third parties into Kymera's computers, networks or devices through the use of the Hosting Services or otherwise ("Third Party Errors"). Client agrees to waive and release Kymera from any and all liability for such Third Party Errors.
6. Third-Party Providers
6.1 Ownership of Third-Party Provider Intellectual Property.
Client acknowledges that Kymera may utilize certain third party owned or controlled stock images, software or other content in connection with the provision of certain Deliverables and Services and that such third party owned or controlled graphics, images, software and other content may be acquired and licensed directly or indirectly to Client from such third party licensors ("Third-Party Licensor"). Subject to Client's right to use the Third-Party Licensor content as incorporated in the Deliverables and Services, any Third-Party Licensor owned or controlled intellectual property used in the provision of the Deliverables and Services shall continue to be owned or controlled by such Third-Party Licensor.
6.2 Third-Party Provider Services.
Kymera is an authorized reseller, licensee, user and/or customer of certain Third-Party Provider owned or controlled services and content. Client understands and agrees that: (i) although Client is contracting directly with Kymera for Services and Deliverables generally, certain content and services may be provided by a Third-Party Provider and are provided to Client in accordance with the Third-Party Provider Terms; and (ii) Kymera retains the right to change any Third-Party Provider at any time. Client agrees to be bound by the Third-Party Provider Terms and acknowledges that Kymera has no authority to negotiate such Third-Party Provider Terms. Client further acknowledges that the Third-Party Provider services and content will be provided in accordance with such Third-Party Provider Terms, the levels of which Kymera cannot guarantee. Upon request by Client, Kymera shall endeavor to provide a copy of any then current, applicable Third-Party Provider Terms.
7. Design Services
If the Services include Website Development Services, or other design services such as trademark, artwork, logo or graphic design ("Design"), the following additional terms and conditions apply:
7.1 Review and Modifications of Design.
Upon completion and delivery of the Website or other Design to Client, Client shall have five (5) days to review the Website or Design and provide comments or suggested changes related to the Website or Design to Kymera. Kymera, in their sole discretion may determine whether such comments or suggested changes are necessary to meet the scope of the Services and Deliverables set forth in the SOW. If Kymera determines such suggested changes are necessary to meet the scope of the Services and Deliverables set forth in the SOW, Kymera shall make such changes and refine the design and development of the Website or Design in accordance with such suggested changes. Any costs associated with such changes shall be borne solely by Kymera. In the event Client fails to notify Kymera of any suggested changes, the Website or Design Services will be suspended until Client provides the comments or suggested changes, or notifies Kymera of its acceptance or approval of the Website or Design, provided that in the event that Client fails to provide any required comments or approvals within sixty (60) days after written request by Kymera, such failure shall be deemed a material breach of this Agreement.
7.2 Material Changes.
Should Client request material modifications, edits, corrections or repairs to the Website or Design that are outside the scope of the Services and Deliverables set forth in the SOW ("Material Changes"), Kymera shall determine the appropriate cost, description, and revised schedule and incorporate these additional services or deliverables into this Agreement by executing a Change Order. Kymera will provide the Change Order to Client for review and execution prior to undertaking any of the Material Changes set forth in the Change Order. Any such Change Orders shall be incorporated under the terms of this Agreement so that all terms and conditions of this Agreement shall apply to any such Change Order. Client shall pay the cost of such Material Changes as set forth in the Change Order.
7.3 Acceptance of the Website or Design.
Client shall provide Kymera with notice of approval of the final Website or Design proofs before the Website shall go-live or final delivery of the Design shall occur. Final delivery of the Website or Design and related Website or Design Services shall be suspended until Client provides approval of the final Website or Design proofs, provided that in the event that Client fails to provide approval within sixty (60) days after written request by Kymera, such failure shall be deemed a material breach of this Agreement.
8. Website Development Services
If the Services include Website Development Services, the following additional terms and conditions apply:
8.1 No Continuing Support.
This Agreement does not entitle Client to any support or updates of the Website after the Acceptance Date unless Client has contracted for Hosting Services in the SOW. By way of example only, certain plugins and third party software provided by Kymera will not be updated after the Website Acceptance Date if Client has not contracted for Hosting Services with Kymera.
8.2 Sample Forms.
As part of the Website Development Services and Deliverables, Kymera may provide a sample privacy policy, sample terms of use and sample accessibility statement (collectively, the "Sample Forms"), for Client to consider when developing their Website. These Sample Forms are being provided for convenience and reference only. Kymera makes no representations or warranties as to the applicability, accuracy, or legality as to the Sample Forms. Client acknowledges that Kymera is not a law firm, and its employees are not attorneys or paralegals and Kymera does not offer legal advice. Client acknowledges that Kymera does not guarantee the legal accuracy or applicability of any of the Sample Forms to Client's legal needs, and that the Sample Forms may not address all legal requirements that may be applicable to the Client's Website or its operation. Client agrees to at all times look to any attorney that Client selects for services as to any legal questions related to the use by Client of the Sample Forms.
8.3 ADA Compliance.
Kymera endeavors to provide websites that conform to Web Content Accessibility Guidelines 2.1. These guidelines explain how to make web content more accessible for people with disabilities. Kymera represents that it will use reasonable efforts to deliver a Website and Hosting Services that are compliant with all applicable laws and regulations, including the Americans with Disabilities Act.
9. Search Engine Optimization
If the Services include Search Engine Optimization Services, the following additional terms and conditions apply:
9.1 Third-Party Search Engine Policies.
Kymera accepts no responsibility for policies of third-party search engines, directories or other websites ("Third Party Provider SEO Resources") that Kymera may submit to with respect to the classification or type of content it accepts whether now or in the future. Client's Website or content may be excluded or banned from any Third-Party Provider SEO Resource at any time. Client agrees not to hold Kymera responsible for any liability or actions taken by Third Party Provider SEO Resources under this Agreement.
9.2 No Guarantee of Rankings.
Client acknowledges that the nature of many of the resources Kymera may employ under this Agreement are competitive in nature. Kymera does not guarantee number one (1) positions, consistent positioning, "top 10 positions" or guaranteed placement for any particular keyword, phrase or search term. Client acknowledges that Kymera's past performance is not indicative of any future results Client may experience.
9.3 Timing of Inclusion.
Client acknowledges that Kymera strategies and submissions to search engines and directories can take an indefinite amount of time for inclusion. Each edit or change made to any resources employed by Kymera may repeat these inclusion times.
9.4 Search Engine Changes.
Client acknowledges that any of the search engines, directories or other resources may block, prevent or otherwise stop accepting submissions for an indefinite period of time. Client further acknowledges that search engines may drop listings from its database for no apparent or predictable reason. Kymera shall resubmit resources to the search engine based on the current policies of the search engine in question.
10. Representations and Warranties
10.1 Kymera Representations and Warranties.
Kymera represents and warrants that: (a) Kymera has full corporate power and authority to enter into this Agreement; (b) the execution and performance of this Agreement does not conflict in any material respect with or constitute a material breach or material default under the terms and conditions of any material agreements to which Kymera is a party; (c) Kymera owns or has a license to use the content and software necessary to provide the Deliverables and Services pursuant to the terms of this Agreement without violating the rights of any third party, including any Third Party Provider; (d) Kymera will use commercially reasonable efforts to provide the Services in line with industry practices; (e) with respect to the Hosting Services if purchased, Kymera shall seek to prevent Unauthorized Code from being introduced into Client's computer and network environment through the performance of the Hosting Services; and (f) the execution and performance of this Agreement by Kymera will not result in a breach of any federal, state or local law, statute, ordinance or regulation.
10.2 Client Representations and Warranties.
Client represents and warrants that: (a) Client has full corporate power and authority to enter into this Agreement; (b) the execution and performance of this Agreement does not conflict in any material respect with or constitute a material breach or material default under the terms and conditions of any material agreements to which Client is a party; (c) the execution and performance of this Agreement by Client will not result in a breach of any federal, state or local law, statute, ordinance or regulation; (d) Client's entrance into this Agreement does not violate the rights of any third party, including Intellectual Property Rights; (e) Client owns all right, title and interest in and to, or has full and sufficient authority to use and provide to Kymera, all Client Materials, intellectual property and other data furnished by Client to Kymera for provision of the Services and Deliverables; (f) the Client Materials will be free from Unauthorized Code and will not infringe or misappropriate the patent, copyright, trademark or other Intellectual Property Rights of any third party, or constitute slander, defamation, invasion of privacy, or violation of any right of publicity or any other third-party rights; and (g) Client has or will secure all necessary consents, permissions, clearances, authorizations and waivers for the use of Client Materials by Kymera and any Third-Party Provider to the extent needed.
11. Disclaimer of Warranties
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE LIMITED WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, KYMERA HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE DELIVERABLES AND SERVICES. KYMERA EXPRESSLY DISCLAIMS ALL WARRANTIES RELATED TO THE SERVICES AND DELIVERABLES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, ACCURACY OF TRANSLATIONS, INTEGRATION OR SYNCING CAPABILITIES, COMPLIANCE WITH THE AMERICAN WITH DISABILITIES ACT, COMPLIANCE WITH HEIGHTENED CYBERSECURITY REQUIREMENTS AND ALL PRIVACY AND DATA SECURITY LAWS, COMPLIANCE WITH THE FTC REGULATIONS AND ALL PROMOTIONAL LAWS, THE CAN-SPAM ACT, OR COMPLIANCE WITH ANY ADVERTISING PLATFORMS RULES OR REGULATIONS. THIS SECTION SHALL BE ENFORCEABLE TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IF KYMERA PROVIDES HOSTING SERVICES, KYMERA DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT (I) WEBSITE ACCESS SHALL BE UNINTERRUPTED OR ERROR FREE IN OPERATION OR (II) THAT SECURITY AND FIREWALLS OF THE WEBSITE SHALL MEET CLIENT'S OR ITS CLIENT'S NEEDS. EXCEPT WHEN EXPRESSLY CONTRACTED FOR BY CLIENT AND KYMERA FOR HOSTING SERVICES, CLIENT ACKNOWLEDGES AND AGREES THAT ANY THIRD PARTY HOST FOR WEBSITE HOSTING SERVICES AND THIRD PARTY VENDORS FOR SECURITY AND FIREWALL SERVICES SHALL BE SOLELY RESPONSIBLE FOR SUCH SERVICES AND CLIENT AGREES TO LOOK SOLELY TO SUCH THIRD PARTIES IN THE EVENT OF A FAILURE OF PERFORMANCE OF ANY SUCH SERVICE.
12. Limitation of Liability
IN NO EVENT SHALL KYMERA BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE DELIVERABLES OR SERVICES, OR THE USE, ACCESS, AVAILABILITY OR PERFORMANCE OF THE DELIVERABLES OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. KYMERA SHALL NOT BE RESPONSIBLE FOR OR HAVE ANY LIABILITY FOR ANY INJURIES OR DAMAGES CAUSED BY ERRORS, INACCURACIES, OMISSIONS OR ANY OTHER FAILURE IN, OR DELAYS OR INTERRUPTIONS OF, THE THIRD-PARTY PROVIDER SERVICES, FROM WHATEVER CAUSE. KYMERA'S LIABILITY TO CLIENT FOR DIRECT DAMAGES, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO KYMERA DURING THE PREVIOUS THIRTY (30) DAY PERIOD, UNDER THE APPLICABLE STATEMENT OF WORK FOR THE SERVICES OR DELIVERABLES GIVING RISE TO SUCH LIABILITY.
13. Indemnification
Each Party shall indemnify, defend and hold harmless the other Party, its agents, employees, directors, affiliates, sub-contractors, parents and subsidiaries, from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable attorney fees and court costs, incurred by a Party, arising out of or related to:
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A Party's negligence, gross negligence, willful acts or violation of law;
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A Party's breach of any representation or warranty contained in this Agreement, breach of the license of Section 3.4, Client's misuse or unauthorized use of Kymera's Pre-existing Intellectual Property, or failure by a Party to perform its obligations under this Agreement;
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Any and all errors, inaccuracies, or omissions in the Deliverables when such error, inaccuracy, or omission results directly from information, Client Materials or Deliverables provided by a Party to the other Party;
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Any claim for infringement of a Party's or any third party's Intellectual Property Rights, defamation or misappropriation or violation of any person's rights of publicity or privacy or a Party's failure to obtain adequate releases and permissions for the Client Materials or other materials provided by a Party to the other Party.
14. Confidential Information
14.1 Definition and Restrictions on Use of Confidential Information.
Each Party agrees that any information concerning the other's price quotes, preliminary concepts, sales and/or marketing proposals, branding strategies, creative designs and concepts, technical data, web designs, trade secrets and know-how, research, product plans, products, customer technical requirements, software, programming techniques, algorithms, services, supplier lists, customers, employee lists, customer lists, developments, inventions, processes, technology, designs, drawings, engineering, apparatus, techniques, hardware configuration information, marketing forecasts, business strategy, finances or other business information disclosed by the other Party ("Confidential Information") shall not, without the disclosing Party's authorization, be disclosed to any other party or used by the receiving Party for its own benefit except as contemplated by this Agreement. The recipient shall protect the confidentiality of the Confidential Information using at least the same means it takes to protect its own confidential information of like kind and shall restrict access to Confidential Information to its personnel on a need to know basis.
14.2 Exclusions from Confidential Information.
Nothing in this Agreement shall restrict either Party's use of information (including, but not limited to, ideas, concepts, know-how, techniques and methodologies): (i) that is or becomes publicly available through no breach of this Agreement; (ii) that is independently developed by the receiving Party; (iii) that is previously known to the receiving Party without obligation of confidence; or (iv) that is acquired by the receiving Party from a third party which is not, to the receiving Party's knowledge, under an obligation of confidence with respect to such information. In the event either Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, the recipient shall promptly notify the other Party of such receipt and may comply with such subpoena or process to the extent permitted by law. Confidential Information shall be returned or destroyed upon the earlier of: (i) the completion of the Services; or (ii) the disclosing Party's request.
15. Termination
15.1 Termination for Cause.
Either Party may terminate this Agreement or any SOW, for cause, immediately if the other Party commits a material breach of this Agreement and continues in default for more than five (5) days after receiving written notice of such default from the non-defaulting Party (immediately upon the breach if the breach is not curable). Kymera may terminate this Agreement, or any SOW, immediately upon any of the following by Client related to this Agreement: (i) negligence or willful act or omission; (ii) fraud, malicious act or action in bad faith; (iii) failure to pay any amounts due under this Agreement; (iv) breach of any representation or warranty by Client contained in this Agreement; or (v) any breach of the license of Section 3.4 by Client or use of Kymera's Pre-Existing Intellectual Property by Client other than in accordance with this Agreement.
15.2 Termination for Convenience.
Kymera may terminate this Agreement or any SOW, for any reason, upon sixty (60) days' prior written notice to Client at any time.
15.3 Automatic Termination.
Either Party may terminate this Agreement and any SOW immediately by written notice if the other Party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due.
15.4 Events Upon Termination.
Upon termination of this Agreement, Client shall promptly pay Kymera for all unpaid fees for Deliverables or Services owed to or incurred by Kymera up until the effective date of such termination. If there is a dispute between the Parties with respect to any amount claimed to be due hereunder, any portion that is not disputed shall be paid by Client to Kymera. Any such partial payment shall not, however, constitute a waiver by Kymera of such payment or any other rights. Upon the termination of this Agreement for convenience by Kymera, Kymera shall promptly refund and pay to Client any amounts advanced or previously paid by Client to Kymera for Services not performed, delivered or accepted by Client pursuant to this Agreement.
16. General Terms and Conditions
16.1 Injunctive Relief.
In the event of a breach or threatened breach of the foregoing provisions, damages to be suffered by Kymera will not be fully compensable in money damages alone, and accordingly, Kymera or the third party owner of the Confidential Information or Intellectual Property Rights shall, in addition to other available legal or equitable remedies, be entitled to an injunction against such breach or threatened breach without any requirement to post bond as a condition of such relief.
16.2 Assignment.
Client shall not assign or transfer this Agreement without the prior written consent of Kymera. Kymera shall be free to transfer this Agreement. This Agreement will be binding on and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns.
16.3 Independent Contractor.
Kymera is an independent contractor. Client and Kymera are independent of one another and neither party, nor its employees or agents, will be considered employees or agents of the other Party for any purpose. This Agreement does not create a joint venture, agency or partnership, and neither Party has the authority to bind the other to any third party.
16.4 Governing Law; Jurisdiction and Venue.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida, without regard to its conflicts of law provisions. The Parties agree to, and do hereby, submit to the exclusive jurisdiction of the state or federal courts of competent jurisdiction sitting in the State of Florida to hear and resolve disputes arising out of, or related to this Agreement, and agree that the exclusive venue for all such actions shall be in Orange County, Florida.
16.5 Attorneys' Fees.
In the event that any action, suit, or other legal proceeding is instituted or commenced by either Party hereto against the other party related to this Agreement, the prevailing Party shall be entitled to recover attorneys' fees, costs and other expenses from the non-prevailing Party.
16.6 Entire Agreement; Amendment.
This Agreement contains the entire agreement between the Parties as to the subject matter hereof and supersedes all prior oral and written agreements between the Parties with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by an authorized representative of each Party.
16.7 Survival.
All provisions of this Agreement that involve rights and obligations which by their nature contemplate or could reasonably contemplate future privileges or restrictions, including but not limited to Client's representations and warranties and indemnity obligations, survive the termination, expiration, cancellation, or other ending of this Agreement.
16.8 Severability; Waiver.
In the event that any one or more provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, any such invalid, illegal or unenforceable provision shall be treated as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability, and shall be enforced as so modified. If no feasible modification shall save such provision, it will be severed from the remainder of this Agreement, as appropriate. The remaining provisions of this Agreement shall be unimpaired, and remain in full force and effect. A failure of either Party to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach, or any other term or condition hereof.
16.9 Headings.
The headings in this Agreement are for the purpose of convenience only. They are not intended to be a material part of the Agreement, and in the event of any conflict between the heading and the text, the text shall govern.
16.10 Counterparts; Electronic Signatures.
The Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Signatures to this Agreement may be exchanged by electronic means and shall have the same legal effect as the exchange of original signatures.
16.11 Time is of the Essence.
Time is of the essence in the performance of each obligation under this Agreement.
17. Definitions
"Advertising Platforms" shall mean and include without limitation Facebook, LinkedIn, Twitter, Google, Instagram and YouTube.
"Client Marks" shall mean all intellectual property including trademarks, service marks, trade names, logos, copyrights, content, designs, graphics, audio, and characters owned or licensed by Client, its subsidiaries, divisions, affiliates, and related marks provided by the Client to Kymera.
"Client Materials" shall mean and include Client Marks, and all other content, data, keywords and phrases for search engine optimization, email addresses, phone numbers, Client's customers' phone numbers, email addresses and addresses, and other information provided by Client to Kymera, or pulled by Kymera from Client's current website.
"Deliverables" shall mean any deliverables or products provided by Kymera to Client identified and set forth in the SOW.
"Heightened Cybersecurity Requirements" shall mean any laws, regulations, codes, guidance from regulatory and advisory bodies (whether mandatory or not), international and national standards, and sanctions, which are applicable to the Client relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151) and General Data Protection Regulation ((EU) 2016/679) (GDPR), all as amended or updated from time to time.
"Hosting Services" shall mean certain Website hosting and maintenance services provided directly by Kymera to Client, as specifically identified in a SOW, in addition to, acting as a reseller of certain website hosting services provided by a Third-Party Provider.
"Intellectual Property Rights" shall mean any and all now known or hereafter known tangible and intangible: (i) rights associated with works of authorship, including, but not limited to, copyrights and moral rights; (ii) trademark and trade name rights; (iii) trade secret rights; (iv) patents, designs, algorithms, and other intellectual property rights; (v) all other intellectual property rights (of every kind and nature and however designated), whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
"Search Engine Optimization Services" shall mean the search engine optimization services as specifically identified in a SOW.
"Services" shall mean the services provided by Kymera to Client identified and expressly set forth in the SOW, including but not limited to: Company/Product naming; Logo Design & Branding; Website/Landing Page Design and Website Development Services; Marketing Strategy Development/Consulting; Brand Messaging; Business Listing Syncing Setup; Press Release/3rd Party Blog content writing & distribution; Photography/Videography; Call Tracking Setup; Review System Setup; Social Media Setup; PPC/Adwords Setup; Graphic Design; Videography/Video Production; Social Media content creation and posting; Blog content creation and posting; eNewsletter blasts; Website Hosting Services and Maintenance; Search Engine Optimization Services; Call Tracking; Review System; Business Listing Syncing; Direct Mail Campaigns.
"Third-Party Provider" shall mean the owner of certain content and services, for which Kymera acts as a reseller, licensee, user or customer.
"Third-Party Provider Terms" shall mean applicable license agreements, end user license agreements, privacy policies, terms of use, service level availability rights and guarantees, and similar policies and requirements established by the Third-Party Provider from time-to-time.
"Unauthorized Code" shall mean any computer virus, worm, trap door, back door, timer, counter, software locks or other such limited routine, instruction or design, or harmful programs, code, or data incorporated that: (i) irretrievably destroys, erases or damages the Hosting Services and/or data accessed by the Hosting Services; (ii) allows for unauthorized access to the Hosting Services; or (iii) otherwise disrupts or prevents the normal operation of the Hosting Services and the access to and the use thereof.
"Website" shall mean the Client-branded internet worldwide web page(s) located at the URL provided by Client to Kymera, or as created by Kymera for Client as part of the Website Development Services.
"Website Development Services" shall mean the website development services as specifically identified in a SOW.
Execution. undefined
IN WITNESS WHEREOF, the Parties have executed this Master Digital Services Agreement as of the Effective Date first written above.