THIS AGREEMENT (together with any schedules and exhibits thereto, the “Agreement”) made between you (together with any and all affiliates or subsidiaries thereof, “Client”) and IUSA LLC ("IUSA”) by incorporation of the Master Services Agreement at this address (https://ionagency.com/legal/msa) into any Statement of Work.
WHEREAS, IUSA provides a wide array of web-based services including, but not limited to, web development, e-commerce, managed web hosting, website administration and support, domain management, email hosting, web marketing and ad management, search optimization, cloud email and office solutions, consulting services, as well as a customizable “Managed Web Services” web site development package;
WHEREAS, Client desires to engage IUSA to provide the services (the “Services”) outlined in the statement of work (the initial statement of work and any subsequent statement of work, together with any attached or referenced exhibits or requirements, are each referred to as an “SOW”), and IUSA desires to be engaged by Client for the Services on the terms and in accordance with the pricing and schedule set forth herein and the applicable SOW; and
WHEREAS, Client and IUSA further desire to agree on certain terms and conditions as set forth below that will apply to any services provided by IUSA to Client with respect to the Services.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto agree as follows:
- Engagement of IUSA. Client hereby engages IUSA to provide the services and related materials and equipment necessary to complete the Services, as hereinafter described and as described in any SOW, and subject to all of the terms and conditions of the Agreement and the terms of any approved SOW, which will be signed by both parties and attached as a schedule to this Agreement, including but not limited to the initial statement of work. IUSA hereby accepts such engagement and agrees to make itself available and to render the Services under this Agreement and any SOW.
- Services. IUSA agrees to complete the Services in accordance with the specifications provided by Client, including but not limited to any written requirements documents provided to IUSA on or before the date of this Agreement or any subsequent SOW, as applicable (the “Specifications”), and including all information, documents and other materials provided by Client to IUSA. The Services include those tasks and Deliverables set forth in the Specifications and the applicable SOW. For purposes of this Agreement, a “Deliverable” is any item (including intermediate and final work product) that IUSA is obligated to prepare or provide to Client as set forth in the Specifications and/or in the applicable SOW, including but not limited to software requirement specifications, functional specifications, reports, software, templates, designs, implementations, schematics, prototypes, programs in source and object code form, interfaces and documentation and instructions (i) necessary to enable a person to utilize any of the foregoing or (ii) associated with any of the foregoing. References to the Specifications will be deemed to include any additional descriptions of services contained in the applicable SOW.
- Delivery Schedule. IUSA will use its best efforts to complete the Services to Client’s reasonable satisfaction on or before the milestone dates set forth on the applicable SOW. Client agrees to timely provide IUSA with any information and materials as reasonably requested by IUSA if required by IUSA to meet the foregoing delivery requirements.
- Compensation. IUSA will be entitled to, as compensation for all the services described in this Agreement, payment at such times and in such amounts as set forth on the applicable SOW, upon receipt of the invoice from IUSA, or upon the due date of any invoice from IUSA for recurring services. There will be no other charges for the services to be provided under the applicable SOW except for those fees and expenses expressly stated in that SOW or as agreed upon with the consent of Client, which will include all applicable taxes or other related charges. IUSA acknowledges and agrees that Client will have no obligation to make any payment to IUSA that has not been pre-authorized and pre-approved by Client.
- Delivery and Acceptance. Except as otherwise agreed by IUSA and Client in the applicable SOW, the following provisions will apply for delivery and acceptance of any Deliverables provided hereunder. The standard for acceptance for Deliverables will be material conformity to the specifications set forth in the Specifications and the SOW.
5.1 Client’s Point of Contact (as defined in the applicable SOW) will accept or reject the initial version and any corrected version of each version of any Deliverable, and will notify IUSA in writing of any error, deficiencies or inadequacies in the version. For the avoidance of doubt, only Client’s Point of Contact (as defined in the applicable SOW) will have the authority to accept or reject the initial version or any corrected version of each version of any Deliverable.
5.2 If Client’s Point of Contact (as defined in the applicable SOW) rejects the initial version or any corrected version of any work, IUSA will immediately commence using its best efforts to correct such error and will have a period of at least 10 business days from receipt of the written rejection to correct all errors, deficiencies or inadequacies specified by Client’s Point of Contact (as defined in the applicable SOW) and submit a revised draft.
5.3 IUSA and Client agree that upon delivery by IUSA of an accepted version of any Deliverable, Client will have 10 days to test the Deliverable and determine whether it has been delivered to its reasonable satisfaction. On or before the last day of such 10 day period, Client’s Point of Contact (as defined in the applicable SOW) may provide IUSA with written notice that final acceptance has occurred (“Final Acceptance”). If Client’s Point of Contact (as defined in the applicable SOW) does not provide such notice, the parties will either agree to a revised timeframe during which Final Acceptance may occur, or may submit the dispute for resolution in accordance with this Agreement.
5.4 Upon Final Acceptance of any Deliverable and subject to the terms of the applicable SOW, all object code, together with all final source code, designs and other files and materials will be released by IUSA to Client (“Final Delivery”). IUSA acknowledges and agrees that Final Delivery will not be deemed complete unless, and subject to the terms of the applicable SOW, and until all final versions of files and materials relating to each Deliverable have been provided to Client.
- Intellectual Property Ownership.
6.1 Subject to the terms of this Agreement and any applicable SOW and excluding any of IUSA’s proprietary information, technology, methods, know-how, Confidential Information and Confidential Materials (each as defined below), any intellectual property, as well as any open source code or software or any intellectual property otherwise generally available to the public, IUSA agrees that all rights, title and interest in and to the Deliverables and any and all work produced for Client in connection with this Agreement, including without limitation, all files, graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all designs, plans, documentation, “look and feel,” artwork, inventions (whether or not patentable and whether or not reduced to practice), algorithms, methods, trade secrets, processes, logos, graphics, video, text, data, flow charts, listings, calculations, maps, sketches, notes, reports, models and samples, and any other works that are incorporated into or otherwise become part of the Services or any Deliverable or are produced pursuant to Client’s requests for services hereunder and under any SOW (including title to the physical objects), of whatever nature, including, without limitation, any patent, trade secret, trademark or service mark rights (and any goodwill appurtenant thereto), any rights of publicity, any right, title and interest in any copyright and any right that may affix under any copyright law now or hereinafter in force and effect in the United States or in any other country or countries (including any “moral rights”), and any other intellectual property and proprietary rights and legal protections in and to such work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing, all renewals, extensions, reversions or restorations of all such rights, all works based upon, derived from, or incorporating the work, all rights corresponding to each of the foregoing throughout the world, all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the work, together with all physical or tangible embodiments of the work, will belong exclusively to Client in the United States and worldwide, and that such works are “works made for hire” as defined under United States copyright law. The terms of this Section 6 will survive the termination of this Agreement.
6.2 Except as expressly provided in this Agreement and any applicable SOW, IUSA agrees that all content, data and other materials, including any Internet domain name used for the Services or Deliverables, contributed or disclosed by Client for purposes of completing the Services or Deliverables will remain the sole property of Client.
7.1.1 For purposes of this Agreement, “Confidential Information” means any proprietary information, methods, processes, technical data, trade secrets, financial figures and know-how of any kind and in any form whatsoever (whether disclosed before or after the date of this Agreement), including, but not limited to, trademarks, service marks, trade names, designs, logos, slogans, symbols, or trade dress (collectively, the “Marks”), as well as information relating to the Marks, business, product or service plans, financial projections, customer lists, business forecasts, sales and merchandising, patents, patent applications, computer object or source code, research, inventions, processes, designs, drawings, methods, engineering, marketing strategies, pricing or financing, which information is designated orally or in writing (either at the time of, or within thirty (30) days after, disclosure) to be confidential or proprietary or which would reasonably be understood to be Confidential Information based on the relevant facts and circumstances surrounding the disclosure. For the avoidance of doubt, all information provided by Client relating to the Services or Deliverables shall be deemed Confidential Information. For the further avoidance of doubt, all information provided by IUSA relating to the Services or Deliverables shall be deemed Confidential Information.
7.1.2 Confidential Information does not include information, technical data, trade secrets or know-how which: (a) is readily available as part of trade or public not as a result of any improper inaction or action of IUSA or Client, its employees, consultants or agents; (c) IUSA or Client by law is required to disclose; or (d) is subsequently disclosed to IUSA or Client by a party having the legal right to make such disclosure.
7.1.3 Definition of Confidential Materials. “Confidential Materials” will include, but not be limited to, all tangible materials, which may be machine, program or user readable, such as printed documents, disks, flash drives, CDs, or any cloud or web-based storage containing Confidential Information, and any digital information sent via email or otherwise made available to IUSA or Client. All work produced or provided by IUSA as and in connection with the Deliverables, the Services, and all materials provided or disclosed by IUSA, including but not limited to any Internet domain name and/or URL, shall be Confidential Materials.
7.2 Use of Confidential Information and Confidential Materials.
7.2.1 Client will, at its discretion, provide the necessary Confidential Information and Confidential Materials to IUSA as is required for the purposes of this Agreement. Nothing in this Agreement obligates Client to make any particular disclosure of Confidential Information.
7.2.2 Client agrees not to use, disclose, publish, publicize, provide, copy, duplicate, sell, loan, or permit any third party to do any of the foregoing, any Confidential Information or Confidential Materials of IUSA for any purpose.
7.2.3 IUSA will not allow or permit, directly or indirectly, disclosure or access to, or transmit or transfer the Confidential Information or Confidential Materials to any third party that is not under the jurisdiction and control of IUSA (collectively, “External Disclosures”) without the prior written consent of Client. For avoidance of doubt, such External Disclosures shall include any and all uses of the Marks.
7.2.4 IUSA will disclose the Confidential Information only to those of its employees, independent contractors, and consultants who have a need to know of the Confidential Information for the purposes of this Agreement and any applicable SOW.
7.2.5 Client agrees to take all reasonable security measures to protect the secrecy of, and avoid disclosure or use of, Confidential Information or Confidential Materials, in order to prevent it from falling into the public domain or possession of persons other than those persons authorized hereunder to have any such information or materials. Client will use all reasonable efforts to protect IUSA’s interest in the Confidential Information and Confidential Materials and keep them confidential, using a standard of care no less than the degree of care that Client would be reasonably expected to employ for its own similar Confidential Information and Confidential Materials.
7.3 No interest, license or any right respecting the Confidential Information or Confidential Materials, other than expressly set out herein, is granted to Client under this Agreement by implication or otherwise. All Confidential Information and Confidential Materials are and will remain the exclusive property of IUSA and will be held in trust and confidence by Client. By disclosing information to Client, IUSA does not grant any express or implied rights to any other party to or under IUSA’s patents, copyrights, trademarks, trade secret information, Confidential Information, or Confidential Materials; provided, however, that Client may have the limited right to use such Confidential Information or Confidential Materials solely in connection with the purposes of this Agreement.
7.4 IUSA warrants, and Client agrees, that only that IUSA has the right to disclose the Confidential Information made available to IUSA under this Agreement.
- Term and Termination. The term of this Agreement will commence as of the date first written above and continue until terminated in accordance with this Section 8, provided that that term will survive until all SOWs have expired or terminated in accordance with their terms. Except as provided in the applicable SOW, either party may terminate this Agreement or an SOW at-will upon 30 days’ prior written notice to the other party, or immediately upon any breach or threatened breach of Section 7 of this Agreement. If Client terminates the Agreement before the Services or applicable SOW is complete, Client will be obligated to compensate IUSA for all work initiated, substantially completed, or completed as of the date of Client’s termination, whether or not accepted by Client as of the date of Client’s termination. If IUSA terminates the Agreement before the Services or applicable SOW is complete, IUSA will refund any fees paid less any expenses or time incurred by IUSA, as calculated by IUSA, in connection with the project.
- IUSA Representations and Warranties. IUSA represents and warrants as follows.
9.1 At the date of Final Acceptance, the Services, Deliverables and all portions or components thereof will be free of material defects, malfunctions, or nonconformities and operate in all respects in conformance with the Specifications and other agreed upon requirements.
9.2 IUSA has full corporate authority to execute and deliver this Agreement and to consummate the transactions hereby in the manner contemplated herein and this Agreement will not violate any other agreement to which IUSA is a party. IUSA will not enter into any agreement that would be inconsistent with the terms hereof.
9.3 IUSA will perform the professional services provided under this Agreement and each SOW in a workmanlike and professional manner and will utilize appropriately qualified personnel.
9.4 IUSA will use its reasonable best efforts to promptly and fully complete Final Delivery for each Service and Deliverable.
9.5 The Services, the Deliverables and any services rendered by IUSA in connection with this Agreement will not violate or in any way infringe any rights of third parties.
9.6 The Services or Deliverables will not contain any open source or third party components or modules that IUSA does not have the authority or permission to use, and IUSA will comply with any and all licensing terms applicable to any such pre-approved open source or third party components or modules.
- Client Representations and Warranties. Client represents and warrants as follows:
10.1 Client has full corporate authority to execute and deliver this Agreement.
10.2 Client agrees that IUSA will not be liable for failures determined to have been caused solely by the gross negligence or willful misconduct of Client.
10.3 Client agrees that IUSA will not be liable or responsible, in any way, for any decrease in revenue, income, net income, sales, or any other actual, anticipated, or projected performance- or time-based metric of Client.
- Indemnification; Limitation on Liability. Client agrees to defend, indemnify, and hold harmless IUSA and its officers, directors, members, managers, employees, successors, and assigns from and against any and all liabilities, losses, damages, claims, demands, costs, judgments, and expenses, including reasonable attorneys’ fees, arising out of or relating to any breach or alleged breach of any of Client’s representations and warranties, covenants, or agreements contained in this Agreement, or the actions or inactions of any of its affiliates, subsidiaries, employees, independent contractors or subcontractors. IUSA will not be liable to Client for any indirect, consequential, or special or exemplary damages such as loss of revenue or anticipated profits or lost business or any other actual, anticipated, or projected performance- or time-based metric of Client.
- Publicity. Except as may be required by law, Client shall not disclose, publicize or advertise in any manner the discussions and/or negotiations giving rise to this Agreement or the existence or terms of this Agreement without the prior written consent of IUSA as to the timing, medium and content of such disclosure.
- Independent Relationship. Client understands and agrees that its relationship with IUSA is that of an independent contractor and that nothing in this Agreement creates a joint venture, partnership, employer-employee or other relationship. Accordingly, Client is not entitled to any benefits that may ordinarily be extended to employees, and is not authorized to make any representation, contract or commitment on behalf of IUSA unless specifically authorized in writing to do so by IUSA. Client agrees that it is Client’s responsibility to carry its own insurance coverage for itself and its personnel and that it will provide certificates evidencing such insurance if and when reasonably requested by IUSA. The parties hereto understand that neither of them has authority to bind the other in any contractual arrangement or transaction with any third party.
- Severability. If any provision of this Agreement should be held invalid or unenforceable for any reason whatsoever or to violate any law of any applicable jurisdiction, such provision shall be enforced to the maximum extent legally permissible so as to give effect to the intent of the parties (unless any such provision is found to be wholly invalid and thus must be considered severed, in which case such provision shall be deemed deleted from this Agreement in such jurisdiction or, in the event that it should be held only to violate the laws of one applicable jurisdiction, such provision shall be inapplicable only within such jurisdiction), and the remainder of this Agreement shall be valid and binding upon the parties as if such provision was not included herein.
- Governing Law. This Agreement shall be deemed to have been made under the laws of the State of Delaware, United States of America, and its form, execution, validity, construction and effect shall be determined in accordance with the laws of the State of Delaware, United States of America as it is applied to contracts entered into in the State of Delaware between Delaware residents. Both parties further consent to exclusive jurisdiction by the state and federal courts sitting in the County of Independence in the State of Arkansas. Process may be served on either party by first class mail, postage prepaid, certified or registered mail, return receipt requested, or by such other method as authorized by applicable law.
- Notices and Communications. All notices or reports permitted or required under this Agreement will be in writing and delivered by personal delivery, sent digitally via email, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, (5) days after deposit in the mail, or upon acknowledgement or receipt of electronic transmission. Notices will be sent to the address set forth at the beginning of this Agreement or such other address as either party may specify in writing.
- Entire Agreement. This Agreement, together with any SOW and any Specifications expressly referenced therein, sets forth the entire intent and understanding of the parties hereto on the subject matter hereof, and supersedes any other agreements or understandings. Any amendment to this Agreement must be in writing signed by both parties. None of the provisions of this Agreement will be deemed to have been waived by any act or acquiescence on the part of either party, its agents, or employees or consultants, but only by an instrument in writing signed by an authorized officer of both parties. No waiver of any provision of this Agreement will constitute a waiver of any other provision(s) or of the same provision on another occasion.
- Miscellaneous. This Agreement may not be assigned by Client without the express written consent of IUSA, which consent may be withheld at the sole discretion of IUSA, and any proposed or effectuated sale, transfer, or assignment of all or substantially all of the assets of Client or of the stock, interest, membership interests, or the capital of Client shall be deemed to be an assignment which shall require the prior written consent of IUSA. Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon both parties, their successors, and permitted assigns. This Agreement may be executed in one or more counterparts each of which will be deemed to constitute an original and all of which when taken together will be deemed to constitute one and the same agreement.