master services agreement
updated: October 4, 2022
This Master Services Agreement (the “Agreement”) is entered into by and between Minisocial.io, Inc., a Delaware Corporation, (the “Company”) and You (the “Client”) (each a “Party” or collectively, the “Parties”).
The Parties hereby agree to the following:
This Agreement governs the Company’s provision of, and the Client’s use of, the Services (defined in Section 2 below) as identified in one or more Statement(s) of Work or Campaign Briefs (each a “SOW”) executed by the Client and the Company. This Agreement includes all SOWs executed by the Client and the Company, all attachments, and any other terms referenced herein or therein, and represents the Parties’ entire understanding regarding the Services. In the event of a conflict between this Master Service Agreement and a SOW, the terms of the SOW shall control. All capitalized terms not defined herein shall have the meanings attributed in the corresponding SOW.
By executing a SOW, the Client agrees that the Client is bound by the terms of this Agreement. Each time the Client submits a SOW and such SOW is confirmed by the Company, the current version of the Agreement, as updated from time to time, will apply to such SOW. If the Client does not agree with this Agreement at any time, the Client should cease use of the Services.
1. representations and warranties
1.1. Each Party represents and warrants to the other Party that (i) it has and shall have all the necessary rights, approvals, consents and permissions to enter into this Agreement and to grant the rights and licenses herein and (ii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
1.2. The Company represents and warrants to the Client that (i) the Company materials and the Company website (excluding all User Generated Content (as defined below) residing thereon) do not and shall not infringe the proprietary rights of any third party; (ii) the Company will use commercially reasonable efforts to perform the Services in accordance with its documentation under normal use; and (iii) the Company will provide the Services in a manner consistent with generally accepted industry standards. The Client must notify the Company of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies.
1.3. For breach of the express warranty set forth in Section 4 herein, the Client’s exclusive remedy shall be the re-performance of the deficient Services. If the Company cannot re-perform such deficient Services as warranted, the Client shall be entitled to recover a pro-rata portion of the fees paid to the Company for such deficient Services, and such refund shall be the Company’s entire liability for the deficient Services.
1.4. The Client represents and warrants that the Client will use the Services only in compliance with all applicable (i) social media sites’ terms and conditions associated with the procurement and use of User Generated Content and (ii) laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation. Additionally, the Client represents and warrants to the Company that (i) the Client owns all rights in and to the Client content; or if the Client content is subject to third party proprietary rights, the Client has all necessary rights, consents and permissions to provide certain information to the Company and to permit the Company to use such information as necessary to provide the Services and (ii) the Company’s use of such information to provide the Services will not infringe or violate any third party’s common law or statutory rights anywhere in the world arising under or associated with its patents, trademarks, copyrights, trade secrets, domain names or attendant conventions (the “Intellectual Property Rights”).
2. services
2.1 Description of Services
The Company will perform the services specified in each SOW (the “Services”). All SOWs engaged in between the Parties are hereby incorporated into this Agreement by this reference. The Parties will enter into the SOWs through the Company’s online portal. All SOWs shall be generated by the Client and shall become effective when confirmed by the Company. Any conflict or inconsistency between the provisions of this Agreement and a confirmed SOW shall be resolved by giving precedence to the SOW under which the Services are to be performed and then to this Agreement.
2.2 SOWs
Each SOW shall include the following:
i. The Services, functions, equipment, software, facilities, personnel and other materials, documentation and resources to be provided by each Party;
ii. The requirements and specifications for any work product to be facilitated by the Company and delivered to the Client (the “Deliverables”);
iii. Estimated delivery dates for the Deliverables; and
iv. Fees payable to Company for the Services and Deliverables along with a fee payment schedule.
3. responsibilities of the client
3.1. The Client shall create a Campaign Brief on the Company website that outlines the Product(s), timeline and Deliverables.
3.2. The Client shall make all existing brand guideline documents relevant to social media or influencer campaigns available to the Company so that the Company can properly target influencers who are individuals with personal social channel presence and followings of less than 50,000 (the “Micro Influencers”) who align with the ethos of the Client’s brand.
3.3. The Client shall make relevant contacts in its marketing/creative and logistical teams available to execute work detailed in the Services as applicable.
3.4. The Client shall be solely responsible for fulfilment of the Product(s) specified in a SOW. The Client is solely responsible for the cost of goods as well as those associated with shipping the Product(s) directly to the Micro Influencer and resolving any issues arising from the shipping of Product(s), including but not limited to, missing/stolen packages, incorrect addresses, postage and/or duty costs and concerns. When the specified Product(s) has shipped, the Company will alert the Client in the event of a mis-delivery or similar unfortunate situation.
3.5. The Client shall be solely responsible for resolving any issues arising from the use of the Product(s) by the Micro Influencer. In the unfortunate event that the Micro Influencer experiences issues with the Product while creating the User Generated Content and notifies the Company of such issues, the Company will promptly alert the Client and provide the relevant Micro Influencer information so that the Client may work directly with the Micro Influencer to remedy the situation.
3.6. The Client may provide return and/or exchange options, as available, with the delivery of the Product(s) to the Micro Influencer.
3.7. The Client shall be solely responsible for reviewing the Deliverables for any third-party Intellectual Property. The Client understands that the Company does not and shall not undertake a comprehensive review of the Deliverables for any third-party Intellectual Property infringement.
3.8. The Client’s failure to abide by timelines laid out in a SOW shall constitute a material breach and shall be cause for Termination by the Company as per Section 6.3 of this Agreement. The Client’s failure to provide the Product(s) as specified in this Agreement and/or a SOW shall constitute a material breach and shall be cause for termination by the Company as per Section 6 of this Agreement.
4. responsibilities of the company
4.1. The Company shall scout and provide to the Client a list of Micro Influencers who would be interested in participating in a campaign with the Client: specifically, exchanging a post on their personal channel (the “User Generated Content”) for product(s) provided by the Client (the “Product(s)”). No additional compensation to individual Micro Influencers (monetary or otherwise) will be within the scope of a SOW. The Client may request that the Company re-scout and replace certain Micro Influencers who may be more “on-brand” for the Client. Such request may be included in the fee paid to the Company for up to twenty percent (20%) of the sourced list. Any Micro Influencer replacement request above twenty percent (20%) shall be re-booked at an additional fee to be incurred by the Client.
4.2. Micro Influencers will be sourced both from the existing Company Micro Influencer database and scouted with adherence to the Client’s brand guidelines complete with their address and interested Product(s). If the Company cannot procure the requested number of Micro Influencers specified in a SOW, the Client may receive a prorated rebate on payment already rendered to the Company.
4.3. The Company’s role is to source Micro Influencers within the guidelines provided in the SOW and to facilitate the Client in the licensing and receipt of the User Generated Content and any other Deliverables set forth in the SOW. Micro Influencers are not employees of the Company and the Company’s Services do not include and shall not include exerting any control over the posts or content uploaded to, or excluded from, the Micro Influencers social media accounts.
4.4. At the end of the campaign, the Company will provide the Client with a database of the Deliverables and a license to their use.
5. payment
The Client will pay the Company the fees set forth in each SOW for Services rendered pursuant to this Agreement. The Client will reimburse the Company for expenses that are expressly provided for in a SOW or that have been approved by the Client, with such approval not to be unreasonably withheld. Payment of the Company’s fees and expenses will be in accordance with terms and conditions set forth in a SOW. The Company will send the Client a statement for fees and expenses incurred which the Client will pay within fifteen (15) days of receipt thereof (the “Due Date”). The Client agrees to pay interest at the rate of 1.5% per month (18% per annum) on any balance unpaid after thirty (30) days from its Due Date. Failure to pay any statement after thirty (30) days from its Due Date shall be, at the sole discretion of the Company, cause for termination of this Agreement. In the event that less than fifty percent (50%) of the Micro Influencers chosen by the Client provide Deliverables to the Company, the Company shall refund the Client no more than fifty percent (50%) of the fee paid to the Company.
6. term and termination
6.1. This Agreement shall commence on the Effective Date set forth in the first SOW and, unless earlier terminated as set forth below or as otherwise specified in a SOW, shall continue to remain in effect until the expiration of all confirmed SOWs (the “Term”).
6.2. The Company and/or Client may terminate this Agreement for any or no reason at all upon thirty (30) days written notice. Notice of the intent to terminate before the end of the Term shall include whether the canceling Party wishes to complete any work already in progress. In the event of a material breach, this Agreement shall be immediately terminable by the non-breaching Party prior to the completion of the Term. By way of example, but not limitation, each of the following shall constitute a material breach of this Agreement: (i) acts which constitute a felony under any state or federal law; (ii) gross, willful or wanton negligence or misconduct; (iii) embezzlement or fraud; (iv) acts which may bring disrepute upon Company in the community; or (v) failure to fulfill and perform duties and covenants hereunder in accordance with the terms of this Agreement and otherwise in a professional, diligent and efficient manner. Such termination shall not prejudice any other remedy to which either Party may be entitled, either by law, in equity, or under this Agreement.
6.3. In the event of a termination prior to the full completion of the Deliverables, Company shall submit to the Client an invoice for all work completed to-date, including any necessary additional work or fees associated with the early termination, payment of which shall be due fifteen (15) days from receipt thereof upon the terms of Section 5 above.
6.4. In the event of early termination, the rights and obligations contained in Sections 8, 10 and 11 will survive any termination or expiration of this Agreement.
7. mutual confidentiality
7.1. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors, assigns, and personal representatives.
7.2. The Parties agree not to disclose, communicate, or otherwise utilize the terms of this Agreement, nor any other information deemed confidential, in any manner outside the SOW(s), either during or after the term of this Agreement. “Confidential Information” shall mean all information disclosed by one Party to another, whether during or before the Term of this Agreement, that is not generally known and includes, but is not limited to (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of either Party or their subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; and (d) any information regarding the skills and compensation of employees, contractors or other agents of either Party or their subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information on behalf of either Party. Confidential Information does not include information that (x) is or becomes a part of the public domain through no act or omission of the receiving Party; (y) is disclosed by a third party without restrictions on disclosure; or (z) was in the receiving Party’s lawful possession prior to the disclosure and was not obtained either directly or indirectly from the other Party. In addition, this section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority. Notwithstanding the foregoing non-disclosure obligations, pursuant to 18 U.S.C. Section 1833(b), the Company shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7.3. Notwithstanding anything else in this Agreement or otherwise, the Company may monitor the Client’s use of the Services and compile user data which is statistical and performance information related to the provision and operation of the Services, provided that such user data does not incorporate non-anonymized services data or identify the Client’s Confidential Information. The Company retains all Intellectual Property Rights in and to such data.
8. indemnification
8.1. The Company shall defend, indemnify and hold harmless (“Indemnify”) the Client and its officers, directors, agents, affiliates, distributors, franchisees and employees (“Representatives”) from and against any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees (“Liabilities”) arising from infringement or violation of a third party’s Intellectual Property Rights by the Company materials or marks. For the avoidance of doubt, the Deliverables shall not be a part of the Company’s materials or marks.
8.2. The Client shall Indemnify the Company and its Representatives from and against any Liabilities arising from infringement or violation of a third-party’s Intellectual Property Rights by the Client information, content or marks or by the Client’s use of the Deliverables.
8.3. If a Party entitled to indemnification hereunder becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the indemnified party by any third party, the indemnified Party shall give the other Party prompt written notice of such matter. The indemnifying Party shall have the right to control the defense of any action subject to this indemnification and the indemnified Party shall have the right to participate in such defense at its own cost with counsel of its own choosing.
8.4. The indemnification obligations set forth in this Agreement are conditioned upon (i) the indemnified Party providing the indemnifying Party with prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying Party’s expense); provided, however, that failure to give such notification shall not affect the indemnification provided under this Agreement except to the extent the indemnifying Party shall have been materially prejudiced as a result of such failure, and (ii) the indemnifying Party having sole control and authority to defend, settle or compromise such claim; except that the indemnifying Party shall not enter into any settlement that affects the indemnified Party’s rights or interests without the indemnified Party’s prior written approval.
9. intellectual property
The Company shall retain ownership of the Intellectual Property Rights to all proposals, concepts, processes, content, and other novel ideas shared with the Client in the course of providing the Services to the Client. The Client shall have the right of first refusal on all ideas submitted to the Client during the Term of this Agreement and, provided the Client is not in breach of the payment terms hereof, the Company hereby grants the Client an irrevocable, perpetual, worldwide license to each such concept, process, content, and any other novel idea actually utilized by the Client or by the Company in connection with its Services to the Client hereunder.
The Client will allow the Company to use its name, trade name, trademark, logo and/or brand in the furtherance of the Services. This includes, but it not limited to use on the Company’s website and marketing materials.
10. noninterference with business
The Client agrees that during the Term of this Agreement, and for one (1) year thereafter, the Client will not, either directly or indirectly, solicit or attempt to solicit any employee, independent contractor or consultant of the Company to terminate his or her relationship with the Company in order to become an employee, consultant or independent contractor to or for any other person or entity. Neither Party shall knowingly make any false, disparaging or misleading statements concerning the Services, the other Party, its suppliers, employees, owners, vendors or clients to any current, future or potential employees, customers, clients or suppliers of the other Party, or to the general public through any forum.
11. notice
11.1. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by certified or registered mail, return receipt requested, upon verification of receipt; or (iv) by email to the email addresses set forth below. Notice shall be sent to the addresses set forth below or such other address as either Party may specify in writing.
If to Company:
NAME: Minisocial.io, Inc.
ADDRESS: 1216 Broadway, Fl 2
New York, NY 10001
EMAIL: info@minisocial.com
With a copy to:
NAME: Wendy Heilbut, Esq.
Heilbut LLP
ADDRESS: 276 Fifth Avenue, Suite 704, PMB 17
New York, NY 10001
wendy@heilbutllp.com
If to Client: a copy will be provided to the Client email address included in the relevant SOW.
11.2. The Company may periodically send updates to the Client in the form of a newsletter. By entering into this Agreement, the Client acknowledges and agrees that the Company may send such emails. The Client may opt out of Company newsletters at any time by either (i) clicking unsubscribe at the bottom of the email, or (ii) by emailing howdy@minisocial.com.
12. general provisions
12.1. Entire Agreement. This Agreement states the entire agreement between the Parties. Any addition or modification to this Agreement must be made in writing and signed by both Parties.
12.2. Governing Law and Forum. This Agreement is made under and shall be construed according to the laws of the State of New York, county of New York. Any dispute arising from this contractual relationship shall be decided solely and exclusively by arbitration and administered by the American Arbitration Association (AAA) in the State of New York.
12.3. Severability. If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible, and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of this Agreement as a whole.
12.4. No Assignment. Neither party may assign this Agreement, except that the Company may assign this Agreement to an affiliate or to any entity that acquires all or substantially all of the Company’s assets or capital stock as results from one or more mergers or any other reorganization.
12.5. Waiver. The waiver of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.
12.6. Force Majeure. The parties to this Agreement shall not be liable to the other for any loss, cost, or damages arising out of, or resulting from, any failure to perform in accordance with the terms of this Agreement, where such failure shall be beyond the reasonable control of such party, which, as employed in this Agreement, shall be deemed to mean, but not be limited to, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, blockades, insurrections, riots, governmental action, explosions, fire, floods, or any other cause not within the reasonable control of either party.
12.7. Agreement. By clicking “I Agree,” You agree to the terms and conditions set forth in this Agreement and all SOWs incorporated by reference. This Agreement may be updated from time-to-time, prior to engaging in a subsequent SOW or additional Services, you should review the most updated version on our website. This Agreement and all SOWs are the only agreement between the Company and You and supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Services and the subject matter of this Agreement. The electronic version shall have the same legal effect as a printed original. If You would like a copy of this Agreement, please download and retain or print out; this Agreement will be available on the Company website or by emailing the Company directly.