Master Service Agreement Terms of Service
Term and Termination: The term of this Agreement shall commence on the “Agreement Start Date” and will continue until terminated by either party upon thirty (30) days’ prior written notice to the other party. Notwithstanding the foregoing, either party may immediately terminate this Agreement upon written notice to the other party if the other party (i) has breached a material term of this Agreement and failed to cure such breach within ten (10) days after receipt of written notice of the breach; or (ii) becomes insolvent, files for bankruptcy protection, or has a receiver appointed. Upon termination of this Agreement, or at any other time upon request of either party, and provided Client has paid in full for all agreed upon services, both parties will promptly return any Confidential Information and any property belongings to the other party, as well as all Deliverables in their then-current state.
Payment Terms: T3 Marketing will provide an invoice each month for all agreed-upon products and/or services via electronic transmission. Client agrees to pay T3 Marketing the amount listed on the invoice attached for the Marketing Program prior to the Campaign Start Date. Client’s failure to make full payment to T3 Marketing when due may result in suspension of services or termination of this Agreement, in T3 Marketing’s sole discretion.
Month-to-Month Renewal: Unless Client provides to T3 Marketing written notice of Client’s wish to discontinue the Marketing Program currently in place, any part of such Marketing Program, or any other services being provided to Client by T3 Marketing pursuant to this Agreement, such Marketing Program and/or services shall be assumed to automatically renew and continue from month to month, with the preceding month’s budget remaining effective for the following month (except to the extent such budget has previously been revised in accordance with this Agreement). Any notice to discontinue services provided by Client under this section must be received by T3 Marketing before the first day of the month for which such notice to discontinue is to become effective. If not timely received, such notice shall take effect beginning with the following month.
Confidential Information: (i) Each party acknowledges that it will be privy to certain confidential and proprietary information of the other party, which may also constitute trade secrets under applicable law. Each party acknowledges that it must protect the other party’s confidential and proprietary information (including Trade Secrets) from disclosure or misappropriation. Each party further acknowledges that marketing plans and techniques, analytics, strategies and ideas, pricing data, financial data, customer data, marketing programs, financial institution files, and other information marked as “Confidential” (collectively the “Confidential Information”), which have been or will be provided by a party under this Agreement, are unique, confidential and proprietary property of the disclosing party and that by providing the Confidential Information to the receiving party, the disclosing party is not conveying any ownership or other interest to the receiving party. The receiving party acknowledges that the Confidential Information derives independent, actual and potential commercial value from not being generally, readily ascertainable through independent development and is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its secrecy. The receiving party agrees (x) to hold in trust and confidence for the disclosing party and to not disclose to any third party without prior written consent of the disclosing party, the Confidential Information, whether it is tangible or intangible, (y) not to use the Confidential Information for the receiving party’s personal benefit or for the benefit of any third party, and (z) to promptly return to the disclosing party all Confidential Information which is tangible upon the termination of the Agreement. A receiving party’s obligations under this Section as it relates to Confidential Information remains a trade secret under the Act, and its obligations under this Section as it relates to Confidential Information that does not constitute trade secrets under the Act shall apply for as long as the Confidential Information remains confidential. (ii) The restrictions above will not prevent the disclosure of Confidential Information that is (w) in the possession of the receiving party at the time of disclosure or that may be independently derived by the receiving party, (x) publicly known or becomes publicly known through no unauthorized act of the receiving party. (y) approved by the disclosing party for disclosure, or (z) required to be disclosed pursuant to a requirement of a governmental agency or law or court order so long as the receiving party provided the disclosing party with reasonable notice of such requirement prior to any such disclosure.
Non-Solicitation: During the Term of this Agreement and for two (2) years after its termination, Client shall not without T3 Marketing’s prior written consent, directly or indirectly, solicit or offer to hire, hire, or retain as an employee or contractor any person employed by T3 Marketing during the Term of this Agreement or for the twelve (12) months preceding the Agreement Start Date. This Non-Solicitation provision shall extend to T3 Marketing employees and to independent contractors performing work for T3 Marketing relating to T3 Marketing’s primary business. In the event of a breach of this provision by Client, Client shall pay to T3 Marketing, as liquidated damages, an amount equal to the compensation (including salary, commission and bonus, whether due in cash, equity or otherwise) earned by such person(s) from T3 Marketing in the preceding twelve-month period.
Limited License for Marketing: Client grants to T3 Marketing a limited license to use Client’s name or tradename, brand name, logos, trademarks, and other relevant intellectual property for the limited purpose of marketing and/or advertising the services provided by T3 Marketing. Client acknowledges and agrees that such license shall include the right for T3 Marketing to (i) use the results of marketing campaigns conducted for Client as case studies within T3 Marketing’s advertising and/or marketing materials, (ii) otherwise describe marketing campaigns conducted for Client or the results thereof within T3 Marketing’s advertising or marketing materials; or (iii) for purposes of T3 Marketing’s own internal analyses. Except with regard to the limited license expressly described herein, no rights to any of Client’s intellectual property shall inure to T3 Marketing as a result of any use of Client’s intellectual property pursuant to this Section.
Compliance with Law/Protection of Consumer Information: Client hereby represents and warrants to T3 Marketing that all consumer information and data made available to T3 Marketing under this Agreement in connection with the Marketing Program was obtained from lawful sources and in a lawful manner and that such consumer information and data does not violate the rights of any third party, including without limitation, the right to privacy, intellectual property, or any confidentiality obligations. Client shall comply with all requirements under federal, state, and local laws, regulations and rules (“Laws”) including but not limited to all Laws and applicable industry standards for maintaining the security of any and all non-public personal consumer information used in connection with the Marketing Program services provided by T3 Marketing under this Agreement.
Limitation of Liability: (i) The liability of T3 Marketing, its officers, members, managers, employees, agents or assigns for any direct damages in any way arising out of or relating to this Agreement whether based on an action or claim in contact, equity, negligence, tort or otherwise, will not exceed, in the aggregate, an amount equal to the “total cost” for the marketing program set forth above. (ii) In no event shall T3 Marketing, its officers, members, managers, employees, agents or assigns be liable for any indirect, incidental, special, consequential, lost-profit or diminution-in-value damages arising out of or relating to this Agreement or T3 Marketing’s performance of services under this Agreement, or failure to perform services, even if given notice of the possibility or such damages.
Disclaimer of Warranties: (i) T3 Marketing warrants that it will diligently provide the services relating to the Marketing Program in a professional manner consistent with industry standards. T3 MARKETING GRANTS NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATIONS, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE IN CONNECTION WITH ITS PERFORMING OF SERVICES.
Indemnification by Client: Client shall indemnify and hold harmless T3 Marketing and its members, managers, employees and agents from and against any and all damages, claims, demands, suits, judgements, losses, or expenses (including without limitation, attorneys’’ fees and fees of other professionals which may be incurred by any of them as the result of any claim, demand, suit or proceeding (i) arising out of or resulting from the breach of this Agreement by Client; (ii) the breach of federal law or the laws of any state in which Client does business or advertises; or (iii) made or brought against Client by an third party (A) that any of the material provided by Client to T3 Marketing for our use in the Marketing Program infringes a third party’s intellectual property rights, or (B) in any way related to an automobile purchased by such third party as result of the Marketing Program.
Cost of Collection: If any sums owed by Client to T3 Marketing under this Agreement are collected by or through an attorney at law, Client shall pay to T3 Marketing all costs of collection including, but not limited to, attorney’s fee actually incurred.
Choice of Laws; Jurisdiction; Venue: This Agreement has been entered under and shall be governed by the laws of the State of Georgia. The parties agree that the state and federal courts located in Fulton County, Georgia will be the sole and exclusive jurisdiction and venue for all disputes between the parties under this Agreement. Each party hereby irrevocably consents to the jurisdiction and venue of the state and federal courts located in Fulton County, Georgia for adjudication of all disputes between the parties under this Agreement and/or otherwise related to the parties’ relationship. Each party hereby waives any objections or defenses to jurisdiction or venue in any such proceeding before such court.
Mutual Construction: This Agreement was negotiated fairly between the parties at arm’s length, and the final terms of this Agreement are the product of the parties’ negotiations. Each party warrants and represents that it had ample opportunity to seek and did receive if desired legal counsel of its own choosing with regard to the contents of this Agreement and the rights and obligations affected by this Agreement. This Agreement shall be deemed to have been jointly and equally drafted by the parties, and the provisions of this Agreement therefore should not be construed against a party on the ground that the party drafted or was more responsible for drafting the provisions(s).
Miscellaneous: The Agreement constitutes the sole and entire understanding between the parties with response to the subject matter hereof and may not be altered or amended except in writing signed by both parties. The Agreement supersedes all prior communication or agreements written or oral and is intended as a complete and exclusive statement of the terms of the Agreement between the parties. This Agreement may be executed in one or more counterparts and signatures by facsimile or other electronic means shall be sufficient to indicate acceptance by the parties, each of which shall be original, and all of which shall constitute one and the same instrument named below.