Master Services Agreement
THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF MEDIAFLY SOLUTIONS AS GOVERNED BY THE APPLICABLE PROVISIONS OF THIS AGREEMENT. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY EXECUTING AN ORDER FORM OR SOW “ORDER” THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THESE TERMS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE. BY USING ANY OF THE SERVICES, YOU CONFIRM YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.
This Agreement was last updated on January 4, 2024. It is effective between Customer and Mediafly, Inc. as of the date of Customer’s accepting this Agreement.
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Services Agreement and any pertinent Order.
“Authorized User” means an individual at a Customer, one of its Affiliates or a third-party partner or vendor of a Customer or Affiliate that has been supplied a user identification and password (for Solution utilizing authentication). Authorized Users may include, for example, employees, consultants, contractors and agents of Customer or an Affiliate, and third parties with which Customer or an Affiliate transacts business.
“Change Requests” means any material change(s) to the nature or scope of the Solution to be provided or to be performed as set forth in an Order. Each Change Request must be agreed to in writing that is signed by an authorized representative of each party which shall set forth any changes to the Solution and the pertinent fees.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Orders. Unless expressly noted to the contrary, the term Customer includes any Affiliate of Customer which is permitted access to the Solution. Customer is responsible for any Authorized User who gains access through it even where an individual is actually employed by an Affiliate or other third-party partner or vendor.
“Customer Materials” means, collectively, all information, data and/or materials (including, but not limited to, documents, PowerPoint files, videos and audio recordings, artwork, metadata, clips, images, marketing material, data file and data feeds) for use with a Solution, provided to Mediafly, or uploaded/imported to the Solution, by or on behalf of Customer. Notwithstanding any other provision of this Agreement, as between Mediafly and Customer, Customer shall be solely responsible for all Customer Materials submitted, imported, collected, copied, accessed, displayed, processed, published, stored or otherwise used within the Solution.
"Integration Services" means Mediafly's process of extracting certain defined data from third-party web sites and/or API keys/access tokens that Customer controls and to which Mediafly is authorized to access by utilizing usernames and passwords provided by Customer. The extracted data is made available to Customer in the Mediafly Solution.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Mediafly” means the Mediafly, Inc. company described in the Agreement as well as any of its contractors and Affiliates who may provide some of the Solutions.
“Order” means an ordering document or online order specifying the Solution to be provided hereunder that is entered into between Mediafly and Customer, including any addenda and supplements thereto.
“Solution” means the products and services that are ordered by Customer under an Order or online purchasing portal, or provided to Customer free of charge (as applicable) or under a limited trial, and made available by Mediafly, including associated Mediafly offline or mobile components, together with all maintenance releases, updates, bug fixes, enhancements, modifications, improvements, new versions, integrations, changes and/or customizations to any Mediafly product or service made by or on behalf of Mediafly, including at the request of the Customer pursuant to an SOW. The term “Solution” also includes all documentation related to Mediafly’s products and services and any pertinent onboarding, deployment services as specified in an Order.
“Statement of Work” or “SOW” means an individual document related to the ordering of any Solution, the creation of Customer Materials and/or the development of customizations, or improvements to the Solution (“Customization Services”) or Integration Services. To be effective, a SOW must be incorporated within a signed Order or agreed to and executed by an authorized representative of Customer and Mediafly. Each executed SOW is incorporated into, and subject to the terms and conditions of this Agreement.
“Third-party Application” means a web-based, mobile, offline or other software application functionality, e.g., Salesforce or Microsoft Office, that interoperates with a Solution, that is provided by Customer or a third-party. Third-party Applications, other than those obtained or provided by Customer, will be identifiable in an Order.
2. MEDIAFLY RESPONSIBILITIES
2.1 Provision of Purchased Solutions.
(a) Mediafly will (i) make the Solution available to Customer pursuant to the applicable Order and this Agreement, (ii) support the Solution subject to the terms of the Service Level Agreement (the “SLA”) set forth at www.mediafly.com/legal/sla, and (iii) comply with all applicable laws, rules, and regulations governing Mediafly’s responsibilities under this Agreement. In the event the Parties agree that Mediafly will provide supplemental support services, the Parties will complete a Change Request demonstrating the same.
(b) During an applicable term (i) the Solutions shall, in all material respects, conform to and operate in accordance with any and all functional specifications therefore set forth in the applicable Order and/or SOW and (ii) Mediafly will not materially decrease the overall security of the Solutions.
(c) For any uncured breach of Subpart (b) to this Section, Customer’s exclusive remedies are set forth in Section 12.3.
2.2 Customization Services. The Parties will enter into a SOW for any Customization Services.
2.3 Protection of Customer Materials. Mediafly will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Materials. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Materials (other than by Customer or Authorized Users) and are provided upon request by Customer.
3. CUSTOMER’S USE OF SOLUTIONS
3.1 Solutions. Mediafly grants Customer a non-exclusive, non-transferable license to access, display, distribute, execute and otherwise use the Solution(s)(the “License”). Such use is limited to (a) using the Solution only in object code and on such device platforms that are specified in the applicable Order, (b) uploading and storing Customer Materials for such purposes as specified in the applicable Order, and (c) allowing Customer’s permitted number of Authorized Users to access and use the Solution.
3.2 Customer Responsibilities.
(a) Customer is responsible for (i) any Authorized Users’ compliance with the terms of this Agreement (ii) the accuracy, quality and legality of Customer Materials, the means by which Customer acquired Customer Materials, (iii) its use of Customer Materials with the Solution and (iv) its use of any Third-party Applications in connection with its use of the Solution.
(b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of Solution and, notify Mediafly promptly of any such unauthorized access or use, (ii) only use the Solution in accordance with this Agreement and applicable laws and government regulations, and (iii) comply with terms of service of any Third-party Applications with which Customer uses the Solution.
(c) Customer will also appoint a “Customer Administrator” to be a single point of contact for Mediafly and to manage the Customer’s compliance with the terms of this Agreement.
(d) Where an Order identifies a specific data partner that will provide data in support of Customer’s use with of the Solution (the “Data Source”), Customer is responsible, at its own expense, for (i) providing Mediafly with access to the Data Source’s API to provide Mediafly with access the Customer’s data; and (ii) providing its own access to the Internet, either directly or through devices that access Web-based content, and for paying any fees associated with such access.
3.3 Usage Restrictions. Customer will not, unless expressly stated otherwise in an Order, (a) make any Solution available to anyone other than its Authorized Users, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Solution, or include any Solution in an outsourcing offering, (c) use a Solution to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Solution to store or transmit Malicious Code or violate any applicable law, (e) interfere with or disrupt the integrity or performance of any Solution or third-party data contained therein, (f) attempt to gain unauthorized access to any Solution or its related systems or networks, (g) permit direct or indirect access to or use of any Solution in a way that circumvents a contractual usage limit, or use any Solution to access or use any of Mediafly intellectual property except as permitted under this Agreement or an Order, (h) modify, copy, or create derivative works based on a Solution or any part, feature, function or user interface thereof, (i) disassemble, reverse engineer, or decompile a Solution, or (j) remove any proprietary notices or labels on the Mediafly Solutions (including without limitation, any copyright, trademark notices).
3.4 User IDs and Passwords. Mediafly will issue a distinct user ID and password for a designated Customer administrator to access the Mediafly Solutions’ customer administrator functionality. Customer may then create additional user IDs and passwords for whom Customer has paid the applicable Fees. Customer may assign only one (1) person for each user ID allocation and users may not share user IDs. All Authorized Users must maintain the confidentiality of all passwords. Customer is entirely responsible for any and all activities that occur under Customer’s account. Customer agrees to promptly notify Mediafly of any unauthorized use of Customer’s account (including any unauthorized use of any user IDs or password of any Authorized User accessing the Services by means of Customer’s account) or any other breach of security known to Customer.
3.5 Customer Affiliates. Customer may permit its Affiliates to exercise its rights hereunder,; provided that (a) such Affiliates agree to be bound by the terms and conditions of this Agreement as if they were a “Customer” herein (and Customer’s execution of the Order shall be deemed to be on behalf of itself and such Affiliates for this purpose); and (b) all acts and omissions of such Affiliates (for clarity, including such Affiliates’ personnel) shall be deemed to be acts and omissions of Customer and Customer shall be responsible therefor. Customer also agrees to be bound by any further restrictions set forth on the Order.
3.6 Mediafly as Customer’s Agent. Customer authorizes Mediafly to act as Customer’s agent, and on Customer’s behalf, to perform Integration Services to extract certain data from third-party sources, sites and databases to incorporate the extracted data in the Mediafly Solution. Extraction sources may include, but are not limited to, providers of telephony services, phone dialers, screen-sharing tools, providers of Customer Relationship Management systems, and the like.
4. FEES AND PAYMENT
4.1 Fees. Customer will pay all fees and all authorized out of pocket expenses as specified in an Order. Such fees are non-refundable except as set forth herein. If Customer usage (e.g., number of Authorized Users or Data Sources) expands beyond what is authorized under the applicable Order Form, Customer will be billed immediately and agrees to pay for the additional usage pursuant to Mediafly’s then-current fees and payment terms (unless other pricing for such additional usage is specifically set forth in the applicable Order Form). Customer is responsible for paying for all agreed upon Fees for the entire Term, whether or not such Solutions are actively used or accessed.
4.2 Invoicing and Payment. Unless otherwise set forth in an Order, all purchases must be paid within thirty (30) days by valid credit card, Automated Clearing House (ACH) or wire transfer. Customer is responsible for providing complete and accurate billing and contact information to Mediafly and notifying Mediafly of any changes to such information, including providing valid updated credit card information if applicable. For payments through a credit card, Mediafly will assess a processing fee in the amount of four percent (4%) of the total invoice. At the beginning of each period of the term and any renewal term(s) as set forth in the herein or as otherwise specified in the applicable Order, (a) if Customer provided credit card information to Mediafly, Customer authorizes Mediafly to charge such credit card for all Solution listed in the Order or (b) if the Order specifies that payment will be by a method other than a credit card, Mediafly will invoice Customer as set forth in the relevant Order.
4.3 Overdue Charges. If any invoiced amount is not received by Mediafly by the due date, then without limiting Mediafly’s rights or remedies those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4.4 Suspension of Service. If any charge owing by Customer under this Agreement is thirty (30) days or more overdue, Mediafly may, without limiting its other rights and remedies, suspend the availability of the Solution until such amounts are paid in full, provided that Mediafly will give Customer at least ten (10) days’ prior notice that its account is overdue, in accordance with the “Notice” section below for billing notices, before suspending the Customer’s access to the Solution.
4.5 Payment Disputes. Mediafly will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.6 Taxes. The Fees shall be exclusive of all taxes (including sales taxes, value added taxes and withholding taxes), levies, duties or similar charges, however designated, levied or imposed, that may be assessed by any jurisdiction in relation to this Agreement or any of the rights provided under this Agreement under the applicable laws following the Effective Date (collectively, “Taxes”), and Customer shall be responsible for (and shall promptly pay or reimburse Mediafly for, as applicable) any and all such Taxes as may be assessed against Mediafly, during the term of this Agreement or subsequent to the effective date of expiration or termination hereof, which are levied or imposed by reason of the performance by Mediafly or Customer or exercise of any rights thereof, other than any Taxes based on Mediafly’s net income.
5. PROPRIETARY RIGHTS AND LICENSES
5.1 Reservation of Rights by Mediafly. Subject to the limited rights expressly granted hereunder, Mediafly reserves all of its right, title and interest in and to all aspects of the Solution, including all of its related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Additionally, in the event Customer provides to Mediafly any suggestions, specifications, comments, or other feedback (collectively, “Feedback”) with respect to any Solution, Customer hereby (a) irrevocably waives and assigns to Mediafly and any all rights Customer may have respect thereto to and (b) acknowledges that Mediafly may utilize, at its sole discretion, such Feedback without notice, restriction or renumeration of any kind to Customer.
5.2 Customer Property. As between Customer and Mediafly, all rights, title and interest in and to all Customer Materials and all Confidential Information of Customer, together with all copyrights, trademarks, patents, trade secrets, and all other intellectual property in or to the foregoing (collectively, “Customer Property”) shall be and remain vested in Customer. Without limiting Customer’s obligations for its Customer Materials, Customer hereby grants to Mediafly a limited, royalty free, fully paid up, non-exclusive, worldwide (unless otherwise expressly stated in the applicable Order) right and license to access, collect, copy, process, store and otherwise use Customer Property solely for purposes of performing Mediafly’s rights and exercising its obligations under this MSA (including under any Order).
6. SECURITY AND DATA PROCESSING
6.1 Security. Mediafly will maintain the Mediafly Solution at third-party colocation, hosting, and telecommunication facilities, where they are subject to commercially reasonable security precautions to prevent unauthorized access to the Services. Customer acknowledges that, notwithstanding such security precautions, unauthorized third parties may gain access to the Mediafly Solution and to any or all Customer Materials. Accordingly, Mediafly cannot and does not guarantee the privacy, security, or integrity of any Customer Materials or of any other data transmitted by or through the Mediafly Solution.
6.2 No Sensitive Information. Customer acknowledges that the Solution has not been designed to process or manage Sensitive Information (as defined in the DPA) and accordingly, Customer agrees not to use the Solution to collect, manage, or process Sensitive Information. Mediafly specifically disclaims any liability that may result from Customer’s use of the Solution to collect, process, or manage Sensitive Information.
6.3 The terms of the Mediafly Data Processing Addendum ("DPA"), including the Standard Contractual Clauses as defined and appended therein, which are located at: www.mediafly.com/legal/dpa, are incorporated by reference to this MSA and are deemed to be signed by the Customer and Mediafly by execution of this MSA. They apply to the processing on Mediafly information systems of personal information.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party or its Affiliates (the “Disclosing Party”) to the other party or its Affiliates (the “Receiving Party”) under this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Materials. Confidential Information of Mediafly includes the Solution. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, business processes disclosed by such party and the terms and conditions of this Agreement and all Orders (including pricing). However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without reference to the Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to its employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations materially as protective of the Confidential Information than those herein. Subject to the preceding sentence, neither party will disclose the terms of this Agreement or the terms in any Order to any third-party other than its legal counsel, accountants and financial advisors without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Mediafly may disclose to a subcontractor Confidential Information necessary to perform Mediafly’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7.4 Injunctive Relief. It is expressly agreed that a material breach of this Agreement by the Receiving Party relating to the Confidential Information will result in irreparable harm to the Disclosing Party and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, the Disclosing Party will be entitled to seek an injunction or other equitable remedies without the necessity to post bond in the event of any threatened or actual material breach by the Receiving Party of the terms of this Section 7.
8. REPRESENTATIONS AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOLUTIONS ARE PROVIDED “AS IS,” AND “AS AVAILABLE” BASIS. MEDIAFLY DOES NOT GUARANTEE THAT ANY CUSTOMERS’ USE OF THE SOLUTIONS WILL PROVIDE IT WITH ANY SPECIFIC RESULTS FINANCIAL OR OTHERWISE.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by Mediafly. Mediafly shall defend, indemnify and hold Customer and its officers, members, directors, employees, agents, and representatives (collectively, “Customer Indemnitees”) harmless from and against all costs, claims, demands, losses, expenses and liabilities of any nature whatsoever, including reasonable attorneys fees (collectively, “Losses”) incurred or suffered by such Customer Indemnitees to the extent any such Losses arise out of, or in connection with, any claim, demand, or cause of action initiated by a third-party (each, a “Claim”) based upon or arising out of: (a) Mediafly’s gross negligence or willful misconduct; (b) personal injury or damage to tangible personal property caused by Mediafly; and/or (c) any alleged infringement or other violation by any Mediafly Solution (or any portion or use thereof) of the patent, copyright, trade secret or other proprietary right (an “Infringement Claim”). Mediafly indemnification obligations for an Infringement Claim is mitigated to the extent that the alleged infringement arises from (a) any data or materials provided by Customer; (b) Customer’s use of the Solution in a manner not previously disclosed to or approved by Mediafly; (c) Customer’s access to or use of the Solutions in combination with any hardware, system, software, network, or other materials or services not provided by Mediafly or specified for Customer’s use, unless expressly permitted by Mediafly in writing; (d) the Customer’s failure to implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Mediafly and (e) any improvements to the Solution requested by Customer and created by or on behalf of Mediafly in accordance with Customer’s detailed instructions.
9.2 Indemnification by Customer. Customer shall defend, indemnify and hold Mediafly and its officers, members, directors, employees, agents and representatives (collectively, “Mediafly Indemnitees”) harmless from and against all Losses incurred or suffered by such Mediafly Indemnitees arising out of or in connection with any Claim based upon or arising out of (a) the gross negligence or willful misconduct of Customer or any Authorized Users; (b) Customer’s use of any Mediafly Solution; (c) an allegation that any Customer Materials or Mediafly’s use thereof, including any Claim that such Customer Materials or transmittal, storage or other use thereof violates any privacy or other rights.
9.3 A party’s indemnification obligations under this Section are mitigated to the extent the claim for which indemnification is sought is caused by the indemnified party.
9.4 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
9.5 Procedures. The indemnified party shall use good faith efforts to notify the indemnifying party of the Claim as soon as possible after the indemnified party becomes aware of the Claim. Additionally, the indemnifying party, at its own expense, shall be entitled to have sole conduct and control of all legal proceedings in connection with any Claim or the settlement or other compromise thereof for which indemnification is sought hereunder; provided, however, that the indemnifying party shall not, without the indemnified party’s prior written consent, agree to any judgment or enter into any settlement or other compromise that adversely affects the interests of the indemnified party. The indemnified party shall give the indemnifying party (and any person acting on behalf of or authorized by the indemnifying party) all reasonable assistance with such defense of any Claim, at the indemnifying party’s reasonable expense. Notwithstanding the foregoing, the indemnified party shall have the right, at its own expense, to participate in the defense of any Claim, provided, however, that the indemnified party shall have no right to control the defense thereof or to settle or otherwise compromise such Claim without the prior written consent of the indemnifying party.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. EXCEPT FOR A CLAIM INVOLVING A PARTY’S INDEMNIFICATION OBLIGATIONS OR OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (A) THE TOTAL FEE PAYABLE BY CUSTOMER UNDER THIS AGREEMENT, FOR THE PERIOD OF SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, AND (B) $10,000. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD-PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW, TO CLAIMS INVOLVING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR OBLIGATIONS OF CONFIDENTIALITY.
11. INSURANCE
11.1 Minimum Coverage. Mediafly shall have, and maintain at its own expense throughout the Term of this Agreement, insurance coverage, with insurance companies authorized to do business where services are performed and with an AM Best Rating not less than A-X, which shall at a minimum include the following:
11.2 Commercial general liability insurance including product liability (on an occurrence basis for bodily injury, death, property damage, and personal injury), with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate;
11.3 Directors and officers liability insurance, with a limit of not less than $1,000,000;
11.4 Umbrella (excess) liability insurance on an occurrence basis, with coverage limits of not less than $1,000,000 per occurrence;
11.5 Automobile liability coverage with minimum limits of $1,000,000;
11.6 Technology errors & omissions insurance including cyber liability insurance with limits of at least $5,000,000 per claim and $5,000,000 in the aggregate; and
11.7 Workers’ compensation, complying with all statutory minimums for those state(s) in which Mediafly performs any of its obligations hereunder and employer liability of not less than $1,000,000.
11.8 Insurance Modifications. Mediafly shall provide thirty (30) days written notice of any cancellation or material reduction in insurance coverage.
11.9 Additional Insured. The Customer will be considered additional insured on a primary and non-contributory basis. Mediafly will waive all rights of subrogation against the Customer.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date Customer enters into an Order or SOW and continues until all services hereunder have expired or have been terminated.
12.2 Term of Solutions. The term of each Order shall be as specified in the applicable Order. Except as otherwise specified in an Order, Orders will automatically renew for additional periods equal to the expiring term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant term. Upon renewal, Mediafly may increase the fees by the greater of 7% or the United States Department of Labor – Bureau of Labor Statistics Consumer Price Index – “all items less food and energy”.
12.3 Termination. A party may terminate this Agreement, an Order or an SOW for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement, an Order or an SOW is terminated by Customer for Mediafly’s cause, Mediafly will refund Customer any prepaid fees based on a pro-rata amount of the remainder of the applicable term after the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to Mediafly for the period prior to the effective date of termination.
12.4 Consequences of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, (a) all rights granted under this Agreement to access and use the Solutions shall immediately terminate, (b) Mediafly shall cease providing any ancillary services pursuant to this Agreement, and (c) Mediafly will delete all of Customer’s data and information from any Mediafly Solution within a reasonable period of time after Agreement termination, subject to applicable laws.
12.5 Survival. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Termination,” “Survival” and “General Provisions” will survive any termination or expiration of this Agreement.
13. GENERAL PROVISIONS
13.1 Export Compliance. The Solution and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Mediafly and Customer each represent that it is not named on any U.S. government denied-party list. Customer will not permit any Authorized User to access or use any Solution in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
13.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
13.3 Entire Agreement. The main body of this Agreement, together with all Exhibits and any Order, constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between the parties with respect to the subject matter hereof. Each of the Exhibits and the pertinent Orders are a part of, and incorporated into, this Agreement. Unless otherwise indicated therein, all capitalized terms contained within the Exhibits, SOWs and Orders shall have the meanings ascribed to them in the main body of this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
13.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.5 Third-party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
13.9 Publicity.Mediafly may use Customer’s name and logo as part of a list of customers and may refer to Customer as a user of its Solution in its advertising and marketing activities. Each party shall obtain the other party's permission prior to using the other party's name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either party relating to this Agreement (including, without limitation, any dispute under this Agreement), or Customer’s use of the Solution, will be prepared jointly between Mediafly and Customer and will be issued only upon mutual agreement of the Parties
13.10 Notices. The Customer should direct notices under this Agreement to Mediafly Inc., located at 150 North Michigan Ave., Suite 2000, Chicago, IL 60601 (email mailto: legal@www.mediafly.com). Mediafly will direct all billing-related notices to Customer to the relevant billing contact designated by Customer. Mediafly will direct all other notices to Customer to the most recent postal and email address Mediafly has on file for such entity. Except as otherwise expressly provided herein, all notices hereunder: (i) shall be in writing; (ii) may be delivered by hand or by any nationally recognized private courier (e.g., Federal Express, UPS); (iii) shall be effective on the date of actual receipt by the addressee.
13.11 Governing Law, and Venue. This Agreement shall be governed by and interpreted in accordance with the applicable provisions of the laws of the State of Illinois, without giving effect to the principles of choice or conflicts of laws thereof. Each of the Parties hereto consents and agrees to the exclusive personal jurisdiction of any state or federal court sitting in the State of Illinois, waives any objection based on venue or forum non conveniens with respect to any action instituted therein, and agrees that any dispute concerning the conduct of any party in connection with this Agreement shall be heard only in the courts described above.
13.12 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.13 Attorneys’ Fees. In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
