MSA

agreement

1. Agreement Scope. This Agreement is a master agreement that provides for the provision by Company to Customer of Services or any Additional Services, ordered by Customer hereunder, pursuant to one or more SOW(s) which are executed by and between Customer and Company and which reference and incorporate by reference the terms and conditions of this Agreement. Accordingly, the parties may at any time during the Term of this Agreement execute SOWs under which Company may provide services to Customer, subject to the terms and conditions outlined in the applicable SOW and the terms and conditions of this Agreement. The Affiliates of either party may also enter into SOWs pursuant to the terms and conditions of this Agreement during the term of this Agreement. Each party represents that its Affiliates who enter into SOWs will comply with the terms of such SOWs and this Agreement. As used herein, the terms “Customer,” “Company,” the “parties,” and similar terms shall also include each party’s respective Affiliates who enter into one or more SOW(s) to this Agreement.  Each SOW shall constitute a supplement to this Agreement and shall be deemed to incorporate all the terms and conditions of this Agreement. In the event of any inconsistencies between the terms and conditions of this Agreement and the terms and conditions of an SOW, such SOW shall govern solely to the extent necessary to resolve such conflict and then only as it pertains to such SOW.

2. Entire Agreement. This Agreement, together with any Exhibits (including but not limited to the attached Exhibit A) and any SOWs, attached hereto, or which are later executed by the parties and expressly reference this Agreement (all of which are hereby incorporated herein by this reference), along with any valid amendments hereto, entirely and exclusively state the entire agreement of the parties regarding the subject matter herein. This Agreement supersedes all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. To avoid doubt, any terms or conditions on any Customer-generated purchase order, order form, invoice, or similar document generated by either party are expressly excluded from this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment signed on behalf of Company and Customer by their duly authorised representatives.

exhibit a

→ Services Terms and Conditions

These Services Terms and Conditions are made an integral part of the Master Services Agreement and set forth the terms and conditions which, along with any additional terms included in one or more SOWs, govern the provision of Services outlined in such SOWs.

→ definitions

The following capitalised terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.

→ 1. services

1.1  Provision of Services. In consideration of the payment by Customer to Company of the applicable fees, Company will provide to Customer the Services indicated on each SOW.  Except as otherwise provided in a statement of work, Company shall procure, at its own expense, all necessary rights, licences, permissions, waivers, releases, and other agreements and documentation required to permit Customer’s use of the Services and Deliverables.
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1.2  Subcontractors.  Company reserves the right to use subcontractors or Affiliates to perform Services on Company’ behalf.  Company will be responsible for the acts or omissions of each subcontractor or Affiliate of Company and for their compliance with all the terms and conditions of this Agreement to the same extent as Company is responsible for its acts or omissions under this Agreement.

1.3  Additional Services.  If in the future Customer desires to obtain from Company additional Services, the parties may execute one or more additional SOWs, setting forth the additional Services (the “Additional Services”) to be provided by Company to Customer, along with the applicable additional fees to be paid by Customer to Company.

1.4 Customer Obligations. Customer agrees to provide Company with such cooperation, materials, information, access, and support which Company reasonably requires to allow it to provide the Services successfully.  Customer understands and agrees that Company’ obligations hereunder are expressly conditioned upon Customer timely providing such cooperation, materials, information, access, and support

1.5  Customer Content.  All of Customer’s data and tangible and intangible property, including but not limited to records, scripts, pictures, photographs, diagrams, graphics, logos, videos and other content, and all intellectual property therein, in each case to the extent provided to Company by Customer or on behalf of Customer by third parties in connection with the Services (“Customer Content”) is and shall remain the exclusive property of Customer. Customer hereby grants to Company a nonexclusive and royalty-free licence to use the Customer Content solely for the performance of and in accordance with the terms of this Agreement and the applicable SOW.  Customer shall procure, at its own expense, all necessary rights, licences, permissions, waivers, releases, and other agreements and documentation required to permit the use of the Customer Content by Company as required for incorporation in or use in connection with the Services.

1.6 Customer Approval. Customer bears sole responsibility for the final review and approval of all content, including but not limited to scripts, printed material, and web content, to ensure the accuracy, legality, and completeness of all information contained therein prior to the use, publication, or distribution of such content by Company in connection with the performance of Services.

1.7  Third-Party Sites.  Customer acknowledges that Company has no control over any third-party websites involved or used in connection with the provision of the Services (“Third Party Sites”) and that such sites may have technical difficulties, may change their APIs, may cancel, or terminate specific programs, block certain data, or may change their terms of service and rules.   The customer acknowledges that the use and access to Third Party Sites may be subject to certain terms and conditions, privacy policies, and other requirements imposed by such sites (collectively “Third Party Terms”).  Third-Party Terms may govern and impact Customer’s access to the sites and the use and provision of Services hereunder.  For example, some Third-Party Terms may require Customer to convey certain intellectual property rights or grant licences to the Third-Party Site (or its affiliates) for any content uploaded, displayed, or developed by or for Customer for use in connection with the Third-Party Site.  Third-Party Terms may also include restrictions and obligations regarding Customer’s collection, possession, handling, transfer, and use of any data collected or generated in connection with the Third-Party Site. Each party hereby confirms that it shall comply with all applicable Third-Party Terms.

1.8 Scheduling and Distribution. [OPTIONAL - SPECIFY] Scheduled distribution through LinkedIn®, Twitter®, Instagram®, TikTok®, YouTube® shorts, and others as agreed upon.

1.9 Technical Support Platforms. [OPTIONAL - SPECIFY] Technical support across social media channels, including, social media scheduling strategy support.

→ 2. owner and intellectual property

2.1  Customer Deliverables.  While performing Services, Company may create Deliverables at the Customer's request. Customer shall own all rights, title, and interest in and to that portion of the Deliverables produced by Company exclusively for Customer.  To the extent that Company Intellectual Property is embedded within any Deliverable, the Customer shall retain the right to use, and to grant or authorise sublicenses to use, such Company Intellectual Property solely in connection with Customer’s use of such Deliverable and not separate and apart from such Deliverable and the associated Services.  Nothing in this Agreement shall be deemed to prohibit Company from using for any purpose any general knowledge, skills, techniques, or methods Company learns while performing Services provided that no Customer Content is used in connection with such activity.

2.2  Company Intellectual Property.  Company Intellectual Property is and shall remain the sole and exclusive property of Company and all right, title, and interest therein or related thereto, without limitation, all intellectual property, including but not limited to copyrights, trademarks, trade secrets, patents, and other intellectual property or proprietary rights, are hereby exclusively reserved by Company.  Any third-party content or technology licensed to Customer under an SOW in connection with the Services provided hereunder shall remain the property of the applicable third-party licensor, and Customer’s use thereof shall always be subject to the terms of this Agreement and the applicable end-user licensing terms and conditions referenced and/or included in the applicable SOW.  Nothing in this Agreement shall authorise the Customer to use any copyright, name, trademark, service mark, patent, or other intellectual property rights of the Company. Except as specified herein, Customer is acquiring no rights in, or title to, the materials or information supplied by Company.  Notwithstanding the foregoing, in no event shall Customer have any title or right to any pre-existing or generic information, training or other materials, software, processes or procedures used, created or developed by Company in the general conduct of its business, including, without limitation, proprietary research tools, databases of information and specialised database applications, software applications, computer programming and/or coding developed by or for Company, which shall be owned by Company and shall be Company’ sole and exclusive property.

2.3  Pre-existing Intellectual Property.  Except for rights expressly granted under this agreement, each party will retain exclusive interest in and ownership of its Intellectual Property developed before this agreement or developed outside the scope of this agreement.

2.4  Independently Developed Intellectual Property. Except for rights expressly granted under this agreement, any Intellectual Property developed solely by a party under this agreement without the other party's participation (“Independently Developed Intellectual Property”) is and will remain the sole and exclusive property of the developing party. However, if the developing party uses the Intellectual Property of the other to develop such material, the developing party’s use of the Independently Developed Intellectual Property shall remain subject to the same restrictions of use that apply to the other party’s Intellectual property.

2.5 Jointly Developed Intellectual Property. If the parties jointly develop Intellectual Property, they will engage in good faith negotiations to establish their respective rights. If the parties cannot reach an agreement about such jointly developed property, the provisions herein addressing rights of a party to use solely-owned Intellectual Property of the other party shall govern the party’s rights to use such Intellectual Property.

→ 3. fees, payment, and taxes

3.1  Fees and Invoices.  Fees for Services shall be outlined in the applicable SOW.  Company will invoice the Customer monthly.  Unless otherwise specified in a SOW, the Customer shall reimburse Company for reasonable travel, accommodation, communications, equipment, and out-of-pocket costs or expenses incurred in conjunction with the Services (“Expenses”), provided that Company must obtain prior written approval before incurring any single expense.  Invoices for Expenses will be sent in the month following the incurred month and will be payable by the payment terms set forth herein.

3.2  Payment.  Unless otherwise specified in an SOW, all invoices will be paid in U.S dollars and are due upon receipt of the date of the invoice. Payments will be made without the right of set-off or chargeback.   All monetary amounts are specified and shall be paid in United States dollars. Customer shall pay each invoice submitted to you by us, in full and in cleared funds.

3.3  Taxes.  All amounts payable by Customer to Company under this Agreement are exclusive of any tax, levy, or similar governmental charge that any jurisdiction may assess, whether based on gross revenue, the provision of Services, the execution or performance of this Agreement or otherwise, and including but not limited to all sales, use, excise, import or export, value-added, governmental permit fees, licence fees, and customs duties; provided. However, that Customer shall have no liability for any net income, net worth, or franchise taxes assessed on the Company by the United States or any state or local taxing authority.

3.4 Without prejudice to any other right or remedy that Customer may have, if Customer fails to pay Company on the due date, Company may:

- charge interest on such sum from the due date for payment at the annual rate of 8% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgement and Customer shall pay the interest immediately on demand;

- suspend all Services until payment has been made in full; and/or

- retain or remove the Deliverables (such as taking down Customer website) if sums payable to Company remain due for five (5) days or over.

3.5 All sums payable to Company under these Conditions shall become due immediately on its termination, despite any other provision. This clause 3.4 is without prejudice to any right to claim for interest under the law, or any such right under these Conditions.

3.6 For the provision of some of our Services money on account will be required before we are able to proceed with your instructions. We shall not be liable for any delay caused by your delay or failure to pay the requested sums on account.

→ 4. term and termination

4.1  Term.  This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 4.2 below, continue in force for a period specified within the applicable SOW. Thereafter, the term of this Agreement shall automatically renew for an additional ongoing monthly recurring period unless either party gives written notice to the other of its intention not to renew this Agreement at least thirty (30) days prior to the expiration of the then-current term.  The initial term of this Agreement, plus any subsequent renewal term, shall be the “Term” of this Agreement.  The term of each SOW shall be as specified in such SOW.   

4.2  Termination.  Upon written notice to the other party, either party may terminate this Agreement and/or any SOW for any reason or no reason, effective thirty (30) days from the date of such notice.  Additionally, either party may, upon written notice to the other party, terminate this Agreement and/or any SOW in the event of a material breach by the other party if such party has failed to cure such breach within thirty (30) days of receiving written notice of such breach from the non-breaching party. In the event this Agreement or any SOW is terminated, Customer will pay Company (a) any amounts due for Services provided under the affected SOW(s); (b) any approved Expenses incurred by Company up to and including the effective date of termination; and (c) any amounts due or to become due under any non-cancelable third party contract or commitment made pursuant to an SOW or with Customer’s written authorization that still exists at the expiration or termination of this Agreement or such SOW.  Termination of an SOW shall not terminate this Agreement, and the parties shall remain free to enter into future SOW(s) pursuant to this Agreement during the term of this Agreement.  In the event this Agreement terminates other than for material breach prior to the completion of an SOW, such SOW shall be subject to the terms and conditions of this Agreement until its completion.

4.3 Survival. Sections 1.5, 1.7, 2 through 8, and 9.7 shall survive any termination or expiration of this Agreement.

→ 5. confidentiality

5.1  Confidential Information.  Both parties acknowledge that, while performing this Agreement, they may be provided with information relating to the products (such as goods, services, and software) or business of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature ("Confidential Information"). Confidential Information includes all communications concerning Company’ or Customer’s business and marketing strategies including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads, and sources of supply, development activities, design and coding, and other technical plans or information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) and any other Company or Customer intellectual property even though specific designation as Confidential Information may not have been made.

5.2  Non-use and Non-disclosure. The parties shall at all times, both during the term of this Agreement and thereafter keep in trust and confidence all Confidential Information of the other party with the same degree of care as it uses to protect its own Confidential Information (and in any event, applying no less than a reasonable degree of care) and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties without the other party’s prior written consent.  In the event either party becomes subject to third-party subpoenas or other demands for documents or testimony in connection with any lawsuit or investigation involving the other party’s business or affairs, such other party will be responsible for notifying the first party of the receipt of such subpoena or other demand.  The provisions of this Paragraph shall survive the termination of this Agreement.

5.3  Non-Applicability.  Confidential Information shall not include, and the obligations of confidentiality shall not apply to information which (i) is or becomes known or generally available to the public, or otherwise has entered the public domain through no fault of the receiving party; (ii) prior to the Effective Date was already in the receiving party’s possession without restriction; (iii) subsequent to the Effective Date is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; or (iv) was developed by the receiving party without the use of or reference to the disclosing party’s Confidential Information. 

5.4  Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to its accountants, attorneys, and parent organisations pursuant to the terms of a non-disclosure or confidentiality agreement which is at least as protective as this Agreement.

5.5  Disclosure Required by Law.  Notwithstanding anything to the contrary herein, each party may disclose the other party’s Confidential Information in compliance with an order from a court or other governmental body of competent jurisdiction only if such party: (i) gives the other party prior notice of such disclosure (unless prohibited by court order or applicable law) if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order. 

5.6 Return of Information. Upon written request, the receiving party shall return or destroy and purge from its computers and systems; all Confidential Information received under this Agreement (including copies, notes, and summaries containing the other party’s Confidential Information). Notwithstanding anything to the contrary set forth herein, the receiving party shall not be required to return or destroy computer files stored in the ordinary course of business as a result of automated backup procedures (subject to the confidentiality restrictions set forth herein). Company shall be permitted to retain media spending data solely for financial auditing purposes.

→ 6. warranties and remedies

6.1  Services Warranty and Remedy. Each party warrants that it has full power and authority to enter into this Agreement and that entering into or performing under this Agreement will not violate any agreement it has with a third party.  Company warrants that it will perform the Services in a workmanlike manner consistent with generally accepted industry standards during the Term. In the event of a breach of the foregoing warranty, Company’ sole obligation and Customer’s exclusive remedy shall be, at Company’ option to either re-perform the applicable Services or provide a refund of fees paid for the affected Services or affected portion thereof.

6.2 Warranty Disclaimer and Limitations. Except as set forth in this agreement, the services and any deliverables are provided “as is” without warranty of any kind, and Company makes no warranties whether expressed, implied, or statutory regarding or relating to such services and deliverables. To the maximum extent permitted under applicable law, Company specifically disclaims all implied warranties of merchantability or of fitness for a particular purpose and non-infringement with respect to such services and deliverables and the use thereof.

→ 7. indemnification

Each party (an “Indemnitor”) shall indemnify, defend and hold harmless the other party and its employees, affiliates, and subsidiaries (each an “Indemnitee”) from any third party claim(s) (each a “Claim”) alleging that (i) the Services or any Deliverable or (ii) any Customer Content (as applicable) infringes any valid patent, copyright or trademark; provided that Indemnitee (a) gives Indemnitor written notice of the Claim and promptly ceases use of the applicable content at Indemnitor’s request ; (b) gives Indemnitor sole control of the defence and settlement of the Claim; and (c) provides to Indemnitor all reasonable assistance, at Indemnitor’s expense. Suppose Company exercises its rights hereunder to request that use by Customer of the applicable content be ceased. In that case, it shall refund the Customer the fees paid for the affected Services or the affected portion thereof. This Section sets forth the parties’ sole and entire liability and exclusive remedies for any infringement or misappropriation claims of any kind. Notwithstanding the foregoing, Company shall have no obligation to indemnify Customer for Claims for patent, trademark, or copyright infringement or other intellectual property violations which are caused by the Customer’s alteration or modification of the Services or any Deliverable.

→ 9. miscellaneous

9.1  Assignment.  Neither party may assign or transfer its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other party.  Notwithstanding the foregoing, each party may assign this Agreement and its obligations hereunder without the other party’s consent to a corporation or other business entity succeeding to all or substantially all of such party’s assets or business related to this Agreement.  Any assignment in violation of this Section shall be void ab initio and of no effect.  Subject to the foregoing, this Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and permitted assigns.

9.2  Customer Identification.  Company will not identify Customer as a user of the Services on its website nor disclose the existence of this Agreement to third parties without Customer’s prior written consent.

9.3  Force Majeure. Neither party will be liable for or be in breach of or default under this Agreement, other than monetary obligations, because of any cause or condition (for example, natural disaster, the act of war or terrorism, riot, or governmental action) beyond such party’s reasonable control.

9.4  Governing Law.  This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. 

9.5  Savings Clause.    If any provision of this Agreement, in whole or in part, is determined to be illegal, unenforceable, or invalid, such provision shall be deleted from this Agreement and shall not affect the legality, enforceability, or validity of the remainder of this Agreement.  This Agreement shall be considered drafted mutually by the parties.

9.6  Notices.  Any notice or other communication under this Agreement given by either party to the other party will be deemed to be properly given if given in writing and delivered to the other party in person or by mail, an overnight delivery service, or electronic mail.

9.7  Non-solicitation. During the Term of this Agreement and for a period of twelve (12) months following its expiration or earlier, lawful termination, neither party shall solicit or approach in any way any of the other party’s employees or contract staff (“Restricted Persons”) with a view to (i) offering such Restricted Persons, employment; or (ii) soliciting services from them on their own account; or (iii) encouraging them to provide their services to a third party; or (iv) offering to them the opportunity to perform services colorably similar to the Services, except pursuant to general solicitations of employment through the media that are not directed specifically to any employees of either party.  If either party breaches its obligations set forth in this Section, the breaching party agrees to pay to the other party in the form of compensation and not a penalty an amount equal to one-third (1/3) of the applicable Restricted Person’s on-target annual compensation.

9.8  Non-waiver.  Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.  

9.9  Independent Contractor.  Each party is an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture, partnership, or principal-agent relationship between the parties.  No party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other, and neither shall have any power or authority to bind the other party. Each party shall retain control over and responsibility for its own operations and personnel nor will any of its employees or agents by virtue of this Agreement or the arrangements hereunder be considered employees or agents of the other party. Each party acknowledges that it has no right to and shall not receive any benefits from the other party, including, but not limited to, health benefits, vacation, retirement, profit-sharing plans, sick leave, and any 401(k) plans.  

9.10 Credit We take great pride in our work and like to share our combined success. Customer agrees that Company shall have the right to include the relevant Customer brand within its roster of clients. When publicly available, the Customer’s project will be directly referenced as part of Company’’s business portfolio.

9.11 Publicity The Client hereby consents to Company referring to the Customer in its sales and marketing literature (including its website).

9.12 Feedback Agency may freely use Customer feedback. Customer agrees that the Company may use feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. Customer grants Company a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, fully paid-up, royalty free licence to use Client provided feedback in any way.

9.13 APIs & 3rd Party Services Content Army™ is not responsible for the uptime, performance or stability of any 3rd party service. Should an API or service change and in any way affect the application or alter scope, additional budget may become required and the timeline may be affected. Content Army™ will document all required integration points.

9.14 Response Time Content Army™ will aim to reply to written support requests within the standard response times for project work. Should the Customer require real time support, the SOW will specify the terms and costs for real-time or high priority support. Written requests must be submitted through the approved project management system. Please note that email, project management software or Slack is often subject to personal schedules and while it should be included in the communication chain, is not subject to triggering a response time window. Content Army™ will define the priority level of a request as part of the triage and response process.

9.15 Resolution Time Resolution of issues will be handled by priority and urgent requests may affect the delivery of regular sprint based work. Content Army™ provides average and top resolution times as a benchmark, but will not guarantee delivery through a service level agreement. The times listed below are estimates only.

9.16 Project Management & Communication Business Day / Hour: For the purposes of this contract, “business days” and “business hours” shall be defined as Monday-Friday, from 9 a.m. to 5 p.m. [GMT].

9.17 Text Chat Content Army™ will sometimes create and use a dedicated Slack channel for general project communication. Slack will not be used as a method for tracking bugs or feature requests, but rather as a place for Content Army™ and our Customer to discuss questions or general project updates.Content Army™ project managers may ask for formal approval in any communication method (Central, Slack, Email), and receive it back from the client. The project manager will articulate that it is a request for approval.

9.18 Project Response Times Due to the nature of our project load, Content Army™ is not set up to support on demand services outside of business hours and any window of time otherwise defined within the SOW. Within the duration of this Agreement, Content Army™ will make every effort to reply to inquiries within two business days except where the Customer has been previously notified of a period of limited availability. Content Army™ will respond in good faith but cannot guarantee any specific action within a given time frame.