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Master Service Agreement (MSA)

This Master Service Agreement (the “Agreement”) is made and entered into by and between the contracting party (“Client”) identified on the applicable statement of work (“SOW”) and Emerald X, LLC d/b/a Emerald Studio, a Delaware Corporation, with its principal office at 100 Broadway, 14th Floor, New York, NY 10005 (“Emerald”; collectively with Client, the “Parties” and each individually as a “Party”), and is effective as of the date of last signature on the SOW. If there is any conflict between the provisions of this Master Service Agreement and the SOW, the provisions of the SOW shall control.

  1. Services. Emerald shall provide the Client with the services (the “Services”), as mutually agreed upon and outlined in the SOW. The specific scope, timeline, and fees for each project or engagement shall be set forth in the SOW, which shall be subject to the terms and conditions of this Agreement. Any word or phrase not otherwise defined in a Statement of Work will have the same meaning ascribed to it in this Agreement. To the extent not governed by any other mutually executed agreement between the Parties, any Services performed by Emerald for Client prior to the execution of the SOW shall nonetheless be governed by the terms of this Agreement.
  2. Client Representative. The Client will provide the name and contact information of one (1) representative to communicate with Emerald (regarding design direction, text, images, functionality, etc.) to streamline the process and prevent miscommunication. In the event the Client changes its designated representative, Emerald must be notified in writing of the change, and all prior approvals up to the time of notification of the representative change shall remain valid. Subsequent edits and change orders to previously approved work are out of scope, and will be billed at the rate outlined in the SOW.
  3. Client Communication and Project Management. Client shall provide all edits, approvals and requests to Emerald in writing before implementation. If Client wishes to review edits via phone after they are emailed, a time will be confirmed in advance.
  4. Progress Reports. Unless otherwise agreed to by the Parties in writing, Emerald will provide Client with updates via email and phone as work progresses at regularly scheduled times as required by the SOW.
  5. Change Order Procedure. Should Client request Emerald to perform services or tasks that are not provided for within the SOW or within this Agreement, or should the project exceed the number of hours allocated in this Agreement or the SOW because of additional work requested by Client, Emerald will promptly notify the Client and the requested work will trigger a change order (“Change Order”). Change Orders are not binding unless and until they are executed by both Parties. Executed Change Orders shall be deemed part of, and subject to the terms of conditions of the Agreement and the applicable SOW. Change Orders will be subject to additional fees. In such a case, Emerald will provide Client with a written time and cost estimate for the additional work for its review. Emerald will not perform any out-of-scope or additional work without receiving prior written approval to proceed.
  6. Client Materials. Client shall retain ownership of all content and materials provided to Emerald pursuant to this Agreement. Client takes full responsibility for any content (including without any limitations graphics, audio, copy text, video, and images) provided to Emerald to be used in this project. Client represents and warrants that it has obtained all necessary rights and licenses for Emerald to use all content and materials provided for the performance of the SOW.
  7. Client Caused Delays. In order to complete Client’s project in a timely fashion, Emerald has allocated personnel to perform work at scheduled times in accordance with a project timeline. In the event Client fails to deliver content, images, directional notes, approvals or other required information to Emerald by the dates specified in the project timeline, all subsequent deadline and project milestones will be postponed accordingly. Under no circumstances shall a payment be delayed due to Client’s failure to provide content. In the event Client fails to deliver content, images, directional notes, approvals or other required information to Emerald by more than five (5) business days after the dates specified in the project timeline, subsequent deadlines may be postponed for lengthier durations due to Emerald work personnel reallocation and rescheduling. In the event Client fails to deliver content, images, directional notes, approvals for more than two (2) months after dates specified in the project timeline, final payment will be due, billed by the hour (not by the project), for all work completed to date and the project will be put on hold.
  8. Ownership of Work. All work performed and deliverables delivered by Emerald for the Client will become the property of the Client upon full payment of all amounts due and owing. Without limitation of the foregoing, Emerald hereby acknowledges that all such works and deliverables shall be considered a work made for hire under the United States Copyright Act. To the extent that the works, deliverables or any element thereof does not vest in Client as a work made for hire, Emerald hereby voluntarily and irrevocably assigns and transfers in whole to Client all right, title and interest in and to such works and deliverables and the results and proceeds thereof to the extent that Emerald has, had or will have any interest therein, including, without limitation, all copyrights and renewals and extensions of copyright therein. Except however, Emerald may retain ownership of certain generally applicable (but not Client-specific) source code and images, in which case the Client is granted an irrevocable, non-exclusive, worldwide, royalty-free license to use such source code owned by Emerald. Additionally, the Client’s work may contain software and other property licensed by third parties, in such event the terms of such third-party license shall control. Client hereby authorizes Emerald to use and display Client’s trade names, logos and any other identifying marks of Client (whether or not such marks are trademarked or otherwise legally protected) along with the work product produced by Emerald for Client on Emerald’s website and/or Emerald’s other marketing materials.
  9. Expenses. Client will be responsible to pay the expenses of any resources it requests Emerald to purchase, such as stock photos, fonts, videos, audio files, third party licenses or other media assets. Client may choose to purchase these items directly and provide them to Emerald for use on their project. Client will reimburse Emerald for any additional expenses including travel, copying, duplicating, shipping, and postage.
  10. Payment. As compensation for services rendered, Client shall pay the fee that is agreed to and in accordance with the terms detailed in the SOW. All invoices shall be due and payable within 60 days of the Client’s receipt of the invoice. Emerald reserves the right to charge interest on any overdue payments at the rate of 5% per month or the maximum rate permitted by law, whichever is lower. The Client shall be responsible for all taxes, duties, or other governmental charges related to the Services, except for taxes based on Emerald’s net income.
  11. Invoices. Invoices are due upon receipt, unless otherwise stated in the SOW. Accounts thirty (30) days past due are subject to a 5% finance charge accrued per month on the outstanding balance. Client agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees, court costs and other expenses of collection resulting from any default by Client in any of the terms hereof.
  12. Confidentiality. “Confidential Information” means any information that is proprietary or unique to the Company and that is disclosed by the one Party to the other Party during the term of this Agreement, including but not limited to trade secret information; matters of a technical nature such as processes, devices, techniques, data and formulas, research subjects and results; marketing methods; plans and strategies; information about operations, products, services, revenues, expenses, profits, sales, key personnel, customers, suppliers, and pricing policies; and any information concerning the marketing and other business affairs and methods of the Company which is not readily available to the public. Each Party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected. Accordingly, each Party agrees the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance, which shall not be less than the standard of care imposed by applicable laws and regulations relating to the protection of such information and, in the absence of any legally imposed standard of care, the standard shall be that of a reasonable person under the circumstances.
  13. Personal Data. In connection with this Agreement and performance of Services, Service Provider may be provided or obtain, from Client or otherwise, Personal Data, as defined below, pertaining to Client’s current and prospective personnel, directors and officers, agents, subcontractors, investors, and customers and may need to Process such Personal Data and/or transfer it, all subject to the restrictions set forth in this Agreement and otherwise in compliance with all applicable foreign and domestic laws and regulations for the sole purpose of performing the Services. For purposes of this Agreement, “Personal Data” shall mean any information relating to an identified or identifiable individual. “Process” or “Processing” shall mean any operation or set of operations performed upon the Personal Data, whether or not by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination and deletion of Personal Data. Emerald will not (i) use any Client’s Personal Data in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer any Personal Data to any third party, except as expressly required to perform its obligations in this Agreement or as Emerald may be expressly be directed in advance in writing by Client; or (ii) retain any Personal Data for any period longer than necessary for Emerald to fulfill its obligations under this Agreement and applicable SOWs.
  14. Indemnification. Client shall defend, indemnify and hold Emerald and its affiliates harmless and their officers, employees, agents, subsidiaries, joint ventures and successors in interest harmless from any claims, losses, fines, sanctions, damages, penalties, expenses or liability whatsoever kind or nature, arising out of or in connection with (i) the negligence or intentional misconduct of the Client in the performance or nonperformance of the Agreement; or (ii) infringement or misappropriation of a third party’s intellectual property or other proprietary rights.
  15. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NEITHER PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
  16. Term and Termination. This Agreement will commence on the Agreement Effective Date and will remain in effect for as long as there is a SOW in effect with respect to such SOW.
  17. Either Party may terminate this Agreement or applicable SOW if the other Party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Either Party may also terminate this Agreement or any affected/all SOWs for cause upon thirty (30) days’ written notice to the other Party of a material breach of this Agreement if such breach remains uncured after the expiration of such period.
  18. Non-Solicitation. During the term of this Agreement and continuing until the second anniversary of the termination of this Agreement, Client agrees that without the written consent of Emerald, it shall not solicit or hire any employee, agent or consultant of Emerald who was employed or retained by Emerald during the term of this Agreement, as an employee, agent, independent contractor, project term worker, or in any other capacity. In the event that a Emerald employee or consultant is hired in any capacity within the second anniversary of the termination of this Agreement, Client shall be liable to and pay Emerald monetary damages equal to two years of that agent’s, employee’s or consultant’s total compensation paid by Client, which, even if not an annual salaried position, shall be computed to as such for purposes of this paragraph.
  19. Non-Disparagement. During the term of this Agreement and thereafter, neither party nor any of its affiliates or entities controlled by it, any shareholders, members, officers, directors, employees or contractors of such party or its affiliates or entities controlled by such party shall directly or indirectly, make any false, malicious or disparaging statements, oral or written, including, without limitation, within social media (i.e. Yelp, Facebook, Twitter, or otherwise) which is injurious to the business, reputation or operations of the other party, its officers, directors or employees, or which may interfere with the good will of the other party or its relations with its customers and suppliers. If a party breaches this provision, such breaching party shall pay the non-breaching party an amount equal to the total amount the Client paid pursuant to the terms of this Agreement and all expenses the non-breaching party incurs in enforcing this provision, including but not limited to reasonable attorneys fees as liquidated damages. The parties acknowledge that the actual damages sustained by the non-breaching party in the event of such default is difficult, if not impossible, to ascertain. In the event that such breach was by means of a written statement, the non-breaching party shall provide written notice to the breaching party of such breach. The breaching party shall have 5 days to remove the written statement. If the breaching party fails to remove the written statement within such 5 day period, then the breaching party shall be liable to the non-breaching party for liquidated damages.
  20. Governing Law. This Agreement shall be deemed made in, and shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law. Any dispute, controversy or claim arising out of or relating to this Agreement or to the breach, termination or invalidity of this Agreement (collectively, “Disputes”) shall be settled only by an action or proceeding commenced in the District of Delaware or adjacent state courts; and the Client consents to jurisdiction over it by, and exclusive venue in, any such court for any Disputes.
  21. Entire Agreement. This Agreement constitutes the entire and final Agreement between the Parties and supersedes any and all prior oral and written agreements or discussions. Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect.
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