This Master Services Agreement (the “Agreement”) shall govern the provision of services to the undersigned client (the “Client”) by Momentum Creative, LLC. (“Momentum”). Additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefor are set forth on the attached Schedule of Work (the “SOW”) which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the Agreement shall control.
CLIENT OBLIGATIONS & MATERIALS
Momentum’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. Momentum shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under this Agreement.
Where photographs, illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. The Client shall pay all fees and expenses required to bring nonconforming materials up to such standards. The Client warrants that all assets, concepts, materials, specifications, information and instructions provided by Client or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties.
Unless otherwise stated in this Agreement or agreed by the parties in writing, the Momentum’s contracts with suppliers in respect of the Services shall be made in accordance with suppliers’ standard terms or such other terms as Momentum is able to negotiate with the relevant supplier.
Momentum shall act as principal in all such contracts, but all rights and liabilities as between the Client and Momentum shall correspond to those between Slate and the various suppliers under such conditions, including in particular any service levels and any rights of amendment, omission and cancellation. Slate shall use reasonable efforts to procure best commercial terms for the Client, and on the Client’s written request Momentum shall supply the Client with the relevant terms and conditions.
Notwithstanding the above, unless the parties agree to different arrangements in writing, Momentum shall negotiate with any talent or celebrities (if applicable) on behalf of the Client, but the Client shall contract with such suppliers directly in order to derive maximum benefit from the relationship.
RIGHTS, OWNERSHIP AND USAGE
Subject to Momentum receiving full payment under this Agreement, Momentum assigns to the Client, without representation or warranty, all rights, title and interest Momentum may have in any work specifically created by Momentum for the Client pursuant to this Agreement, except that:
(a) Momentum may use and distribute such work as part of its portfolio for promotional purposes;
(b) Momentum shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Work”) which have been presented to the Client but not included in the final work product;
(c) Momentum shall own and retain all rights to any technology, technical documentation, inventions, algorithms, software, architecture, logic, navigation, 3d modeling files, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, files and features incorporated into or utilized by the Work (collectively, “Background Technology”).Unless the parties agree otherwise in a written and signed Statement of Work, Momentum shall retain ownership of any and all Background Technology, including any and all associated intellectual property rights. Momentum hereby grants to Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform Momentum Background Technology, in compiled machine readable object code form only, to the extent incorporated into deliverables provided hereunder strictly for the purposes and in the territories set out in the applicable Statement of Work. Use of Background Technology for any other project, on any other website or in any other medium shall be subject to additional fees and licenses which may be granted or withheld by Momentum in its sole discretion; and
(d) If the Client desires to utilize any of the Work, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Client shall hire Momentum to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such Work if, and only if, Momentum declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to Momentum.
LEGAL CLEARANCES & INDEMNIFICATION
The Client is responsible for obtaining all legal clearances required for the performance of services hereunder. The Client shall indemnify, defend (at its own cost and expense) and hold Momentum and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Client.
LIABILITY OF MOMENTUM
Momentum shall not be held responsible for delays or nonperformance caused by activities or factors beyond its reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Momentum or by Client. Momentum shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. Momentum’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.
CONFIDENTIAL INFORMATION; NON-SOLICITATION
Confidential information is that which relates to the Client’s or Momentum’s research, development, trade secrets or business affairs and includes, in the case of Momentum’s confidential information, concepts presented to, but not selected by, the Client; it does not include information that is generally known or easily ascertainable by third parties. Momentum and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. Neither party shall solicit the other’s employees, independent contractors or consultants or engage them in any work independent the parties’ relationship under this Agreement during the term of the Agreement and for two years thereafter.
GOVERNING LAW; JURISDICTION
This Agreement shall be interpreted and construed in accordance with the laws of the State of New York, without regard to any conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in New York County, New York for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any such action or proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees of its attorneys.