This Services Agreement (this “Agreement”), dated as of_____________________________ , is by and between Camp Massive, with offices at 560 W Main St., Suite C165, Alhambra, CA 91801 (“Camp Massive”), and _______________________, with offices located at __________________________________________________ (”Customer” and together with Camp Massive, the “Parties”, and each a “Party”).
WHEREAS, Camp Massive has the capability and capacity to provide certain digital marketing services, among other services; and
WHEREAS, Customer desires to retain Camp Massive to provide the said services, and Camp Massive is willing to perform such services under the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Camp Massive and Customer agree as follows:
- Services. Camp Massive shall provide to Customer the services (the “Services”) set out in the statement of work (“Statement of Work”) attached as Schedule A hereto. Additional Statements of Work shall be deemed issued and accepted only if signed by Camp Massive and Customer. Without limiting the generality of any Statement of Work, including, without limitation, Schedule A, if and to the extent the Services include the performance search engine optimization, Customer acknowledges and agrees that Camp Massive has no obligation to rank downgrades in the first two months after the Effective Date unless otherwise set forth in an applicable Statement of Work.
- Customer Obligations. Customer shall (a) cooperate with Camp Massive in its performance of the Services, and (b) take all steps necessary to prevent Customer-caused delays in Camp Massive’s provision of the Services. Without limiting the generality of the foregoing, Camp Massive shall not be liable for delays caused by Customer’s failure to obtain or provide necessary approvals, information and instructions on a timely basis.
- Fees and Expenses.
3.1 Fees. In consideration of the provision of the Services by Camp Massive and the rights granted to Customer under this Agreement, Customer shall pay the fees and expenses set out in the applicable Statement of Work (the “Fees”). Customer shall pay the Fees due and owing under this Agreement in monthly amounts during the Term. Each installment shall be invoiced monthly in advance by Camp Massive and shall be immediately due and payable by Customer. In addition to all other remedies available under this Agreement or at law (which Camp Massive does not waive by the exercise of any rights hereunder), Camp Massive may suspend any Services, and shall not be required to perform any Services, under this Agreement until the Customer pays the then-current invoice amount.
3.2 Expenses. Customer shall reimburse Camp Massive for all reasonable expenses incurred in accordance with the Statement of Work and set forth in any monthly invoice provided by Camp Massive.
3.3 Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Camp Massive’s income, revenues, gross receipts, personnel or real property or other assets.
3.4 Refund Policy. Customer acknowledges and understands that Camp Massive has a no refund policy.
- Disclaimer of Warranties. Except as otherwise set forth in this Agreement, all warranties, express and implied, are expressly disclaimed.
- Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Camp Massive in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials, shall be owned by Camp Massive.
6.1 From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party (”Confidential Information”). The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
6.2 If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
- Term, Termination and Survival.
7.1 This Agreement shall commence on the date immediately following Customer’s payment of the Fees set forth in Section 3.1 (the “Effective Date”) and shall continue thereafter on a month-to-month basis (the “Term”), unless sooner terminated pursuant to Section 7.2.
7.2 Notwithstanding anything to the contrary in Section 7.1, either Party may terminate this Agreement with seven (7) days prior written notice to the other party.
7.3 Following the termination of this Agreement, Camp Massive shall promptly invoice Customer for any outstanding Fees and expenses due and owing under this Agreement through the date of termination, and Customer shall pay all such Fees and expenses to Camp Massive in accordance with the payment terms set forth in Section 3.
7.4 The rights and obligations of the parties set forth in this Section 7.4 and in Sections 5 (Intellectual Property), 6 (Confidentiality), and 8 (Limitation on Liability), and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
- Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth in the Preamble to this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by electronic mail with confirmation of receipt, personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party (and Notice of confirmation of receipt by the receiving Party); and (b) if the Party giving the Notice has complied with the requirements of this Section 10.
- Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
- Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Camp Massive. Any purported assignment or delegation in violation of this Section 14 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
15. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
16. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Governing Law. This Agreement shall be governed by the laws of the State of California, without reference to its choice of law principles. In the event that either party commences any action to construe or enforce this Agreement, the prevailing party in such action shall be entitled, in addition to any and all other relief granted, to recover the costs, fees and expenses incurred in such action, including reasonable attorneys’ fees
- Force Majeure. Camp Massive shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Camp Massive including, without limitation, acts of God, telecommunication breakdown or power outage, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, epidemic or labor disputes (whether or not relating to either party’s workforce).
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 10, a signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.