- Services and Deliverables
- Fees, Expenses, Taxes and Payment
- Intellectual Property
- Representations and Warranties
- Limitation of Liability
- COVID-19 Waiver
- Release and Indemnification
- Term and Termination
Last Revised July 23, 2021
MASTER SERVICE AGREEMENT
YOU AGREE TO BE BOUND BY THIS AGREEMENT UPON THE EARLIER OF: (A) YOUR SIGNING OF ANY WORK STATEMENT OR DOCUMENT THAT REFERS TO THIS AGREEMENT; (B) YOUR CLICKING OF ANY “ACCEPT” OR “AGREE” INDICATOR ACCOMPANYING THIS AGREEMENT; (C) YOUR INITIATION OF ANY SERVICES OR PRODUCTION OF ANY DELIVERABLES FOR US; AND (D) YOUR RECEIPT OF ANY PAYMENT FOR ANY SERVICES OR DELIVERABLES PROVIDED TO US. THIS AGREEMENT IS WITH YOU, AN INDIVIDUAL, IF YOU ARE A SOLE PROPRIETOR OR ACTING IN YOUR INDIVIDUAL CAPACITY. THIS AGREEMENT IS WITH AN ENTITY IF YOU ARE AN EMPLOYEE OR AGENT OF SUCH ENTITY, IN WHICH CASE, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
This Master Service Agreement (“Agreement”), effective as of the Effective Date (defined below) is entered into by and between [[CTSA LLC]], a Delaware limited liability company having a place of business at 874 Walker Road, Suite C, Dover, Delaware, 19904, United States (“Company”) and the party identified in the applicable Statement of Work (defined below) or who has otherwise agreed to enter into this Agreement as set forth above (“Contractor”). Contractor and Company may be referred to in this Agreement collectively as “Parties” and separately as a “Party.”
Company is engaged in creating, publishing and distributing photographs, media and other content related to resorts and public sites, including Walt Disney World™.
Contractor is in the business of providing the Services (defined below) and producing the Deliverables (defined below).
Contractor has represented that Contractor has the requisite skill and experience to perform the Services and produce the Deliverables.
Company, relying on Contractor’s representations, desires to have Contractor perform the Services and produce the Deliverables, and Contractor desires to perform the Services and produce the Deliverables, subject to the terms and conditions set forth below.
NOW THEREFORE, in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE 1 – SERVICES AND DELIVERABLES
1.1 Effective Date. The term “Effective Date,” as used in this Agreement, will mean the earlier of the following: (a) the date Contractor signs any SOW that refers to this Agreement; (b) the date Contractor clicks or activates any checkbox, selector or consent indicator that indicates Contractor’s acceptance of, consent to or agreement to this Agreement; and (c) the date Contractor initiates (or receives payment for) any Services or Deliverables.
1.2 Statements of Work. From time to time, the Parties may confer regarding any document prepared and provided by Company to Contractor (including a statement of work, work order, purchase order or other document) that specifies: (a) the particular Services and Deliverables ordered by Company; and (b) the terms and conditions applicable to such Services and Deliverables, including any specifications or instructions that describe Company’s requirements as well as pricing and payment terms. Based on such conferring, Company may provide Contractor with a proposed version of such document. Contractor will be deemed to have accepted such document upon the earlier of the following: (i) Contractor’s signing of such document; (ii) Contractor’s initiation of any Services or production of any Deliverables specified in such document; and (iii) Contractor’s receipt of any payment from Company in connection with such Services or Deliverables. The term “SOW” or “Statement of Work,” as used in this Agreement, will mean any such document that is accepted (or deemed accepted) by Contractor under this Section. Each SOW, upon the date accepted (or deemed accepted) under this Section (“SOW Date”), will be binding on the Parties and automatically incorporated into this Agreement. Contractor will perform for Company, the services described in the SOWs (“Services”), and Contractor will provide to Company, any and all deliverables specified in the SOWs, together with all other work product, materials, prototypes, samples, documents, data and results arising or resulting from the Services (collectively, “Deliverables”).
1.3 Facility. Except to the extent the applicable SOW provides otherwise or the Parties agree otherwise in writing, Contractor will perform all Services at facilities owned or leased by Contractor, not at any facility of Company.
1.4 Contractor’s Personnel. Contractor will be free to utilize Contractor’s own employees and subcontractors as Contractor deems fit to perform the Services (collectively, “Personnel”). If Contractor is an individual or sole proprietor, the Parties acknowledge that Contractor, himself/herself, would be deemed one of the Personnel. Contractor will be fully responsible and liable for all acts and omissions of the Personnel as if Contractor performed such acts and omissions. At Company’s request, Contractor will require any Personnel to sign and deliver to Company, any assignment, consent, certification, license, instrument or other document for purposes of perfecting, memorializing, documenting, evidencing or confirming Company’s rights under Articles 3 and 4 of this Agreement.
1.5 Non-Exclusivity. The Parties acknowledge and agree that Contractor is in business for Contractor, and Contractor’s services are not exclusive to Company. Nothing in this Agreement will: (a) restrict Contractor from performing to third parties, services of the same industry category as the Services, or from providing to third parties, deliverables of the same industry category as the Deliverables; or (b) restrict Company from obtaining from third parties, services of the same industry category as the Services, or from obtaining from third parties, deliverables of the same industry category as the Deliverables.
1.6 Schedule of Services. Company will not set a work schedule for Contractor. Contractor will not be required to work any minimum hours per week under this Agreement.
1.7 Control of Services. Contractor will not be bound by any employment policies or procedures of Company. Contactor will exercise full control over the direction, methods and implementation of the Services. Company will maintain no control or direction over any Services performed by Contractor. Company will not impose any of its own policies or rules on Contractor; provided, however, that Contractor will comply with the terms of this Agreement.
1.8 Contractor’s Right to Perform Similar Services. Contractor will be free to perform services of the same industry category as the Services in the operation of Contractor’s own business, as well as for competitors of Company. Contractor hereby acknowledges, represents and affirms that: (a) Contractor does perform such services for Contractor’s own business of the same industry category as the Services; (b) such services are independent and separate from the Services provided to Company under this Agreement; and (c) Contractor is not, nor does Contractor believe to be, an employee of Company.
1.9 Equipment, Materials and Resources. Contractor will provide Contractor’s own methods, tools, equipment, materials and supplies required to perform the Services, unless otherwise specified in the applicable SOW.
1.10 No Training. Company will not provide Contractor with any training relative to the Services, nor will Company require Contractor to attend or participate in any training.
1.11 Compliance with Applicable Law and Standards. Contractor will perform all Services in compliance with applicable law, in a professional manner consistent with generally accepted, applicable industry standards, and in accordance with the specifications and requirements set forth in the applicable SOW.
1.12 No Progress Reporting Requirements. Although Contractor will advise Company when Contractor has completed Services and is free to express any concerns to Company, Contractor will have no duty whatsoever to make or file with Company, any progress reports of any kind regarding Services or attend any meetings with Company. Similarly, Contractor will not be subject to any performance reviews nor will any such reviews, verbal or written, be conducted with Contractor relative to the Services. However, nothing in this Section will impair or eliminate the right of either Party to terminate this Agreement in accordance with Article 10.
1.13 Acceptance of Services and Deliverables. Company will be entitled to examine and test, to its reasonable satisfaction, the Services and the Deliverables for acceptance. Company will be entitled to reject any Services or Deliverables that do not meet the specifications or requirements set forth in the applicable SOW. Company will not be obligated to pay for any such rejected Services or Deliverables.
ARTICLE 2 – FEES, EXPENSES, TAXES AND PAYMENT
2.1 Fees. The applicable SOW will set forth any fees payable to Contractor for the Services and Deliverables related to such SOW.
2.2 Invoices. At the end of each month during which Contractor has provided Services or Deliverables to Company in accordance with the applicable SOW, Contractor will provide Company with a detailed, accurate written invoice for the fees owed by Company in accordance with such SOW.
2.3 Payment. All payments owed by Company under this Agreement will be paid in United States dollars. Unless the applicable SOW provides otherwise, subject to the terms and conditions of this Agreement, Company will pay the owed fees set forth in Contractor’s invoices for all completed Services and Deliverables accepted by Company, and Company will make such payment within forty-five (45) days of receipt of each invoice.
2.4 Taxes; Insurance; Withholdings. Contractor acknowledges that Contractor is an independent contractor and responsible for Contractor’s own taxes. Contractor will be solely responsible and liable for all business taxes incurred by Contractor in connection with this Agreement, including any federal, state and local taxes related to income received under this Agreement. Company will have no obligation to withhold any amounts from any payments due to Contractor under this Agreement for tax-related purposes. Company will not be responsible for paying any federal, state or local income and other payroll taxes for Contractor. Company will generate a Form 1099, as required by applicable law to report fees paid.
2.5 No Benefits. Contractor will be an independent contractor of Company. Contractor will not be an employee of Company, and Contractor will not be entitled to any of the benefits that may be provided by Company to its employees, including workers’ compensation, disability benefits, group insurance, retirement plan participation or paid time off. Neither Contractor nor any Personnel will have the right to receive any fringe benefits under this Agreement, including vacation pay, sick pay, health insurance, dental insurance or insurance coverage of any kind or any other benefits that an employee might otherwise be entitled to receive. Contractor’s only compensation will be the fees described in Section 2.1 or any other consideration expressly set forth in the applicable SOW.
2.6 Cost and Expenses. Except to the extent the applicable SOW expressly provides otherwise, Contractor will bear all costs, expenses and charges incurred by Contractor in connection with this Agreement, including all costs, expenses and charges related to or otherwise necessary for the performance of the Services, and Company will have no obligation to reimburse Contractor for such costs, expenses and charges.
ARTICLE 3 – CLEARANCE
3.1 Third Party Resources. Contractor will not, directly or indirectly, perform any Service or produce any Deliverable at or through the use of any data, software, hardware, equipment, facility or resource of any third party that provides such third party with any right, title or interest in or to any IP Assets (defined in Section 4.2).
3.2 Originality Requirement; Third Party IP. Except the applicable SOW expressly provides otherwise, all Deliverables will be Contractor’s original creations, and no Deliverables will include any third party IP. If Contractor finds it necessary to use a third party’s IP (including open source software) to fully perform any Services or produce any Deliverables, Contractor will notify Company of such IP in writing before beginning such Services or producing such Deliverables. Upon Company’s request, the Parties will discuss the need to use such third party IP and alternative approaches to rendering the Services or producing the Deliverables without using such IP. If the Parties mutually agree upon such an alternative approach in writing, Contractor will perform the Services and provide the Deliverables without using such third party’s IP. If the Parties are unable to agree upon such alternative approach, Contractor will suspend the Services until Company provides its written consent to proceed based on a written, third party license obtained by Company.
3.3 Contractor IP; License to Company. The term “Contractor IP,” as used in this Agreement, will mean: (a) any IP in which Contractor has any right, title or interest before the Effective Date; (b) any IP in which Contractor acquires any right, title or interest (other than the Limited License defined in Section 4.3) after the Effective Date for purposes unrelated in any way to any SOW or this Agreement; and (c) Contractor’s (if Contractor is a person) and Personnel’s personal rights of publicity, personal privacy rights, personal name and likeness rights, and trademark rights in the names of Contractor (if a person) and Personnel. Contractor hereby grants to Company, a worldwide, irrevocable, perpetual, paid-up, royalty-free, assignable, sublicensable, non-exclusive license, under Contractor’s and such Personnel’s rights of publicity, privacy rights, trademark rights, copyrights and other rights, to: (i) make, have made, use, import, offer for sale, sell, lease, reproduce, perform, display, distribute, publish, prepare derivatives of, modify, adapt and otherwise commercialize any and all Contractor IP that is fully or partially included in any Deliverable or is operatively linked or coupled to any Deliverable; and (ii) publish Contractor’s and each such Personnel’s biography, name, likeness, personal image and voice in any and all forms and mediums in connection with any Deliverable.
3.4 Personal Content of Third Parties. Contractor will not, directly or indirectly, perform any produce any Deliverable that includes any Third Party Personal Content (defined below) of any person or perform any Service that involve creating or capturing such Third Party Personal Content unless Contractor has, before performing such Service, obtained from such person (or, if such person is deceased, such person’s heirs or representatives) a binding, written consent that provides Company with a worldwide, perpetual, irrevocable, royalty-free, sublicensable, assignable, non-exclusive license, under such person’s rights of publicity, privacy rights, trademark rights, copyrights and other rights, to: (a) reproduce, prepare derivative works of, modify, distribute copies of, perform, display, use, copy and publish such Third Party Personal Content in any and all forms and mediums in connection with such Deliverable; and (b) publish such person’s biography, name, likeness, personal image and voice in any and all forms and mediums in connection with such Deliverable. When delivering any such Deliverable to Company under this Agreement or upon Company’s request, whichever is earlier, Contractor will provide Company with a copy of such consent signed by such third party. The term “Third Party Personal Content,” as used in this Agreement, will mean all works, content and other IP taken, made, generated, recorded, created or otherwise captured by Contractor or Personnel that personally depict, portray, illustrate, represent, identify or indicate any third party.
3.5 Compliance with Law. Contractor will perform all Services and produce all Deliverables in compliance with all applicable laws, including the laws and regulations related to privacy or intellectual property.
ARTICLE 4 – INTELLECTUAL PROPERTY
4.1 Intellectual Property. The term “IP,” as used in this Agreement, will mean all ideas, concepts, inventions (whether or not patentable), discoveries, works of authorship (whether or not copyrightable), photographs (including documentary photos, photojournalism, fine art, news photos, editorial photos, commercial photos, personal photos, sports photos, and photos of sports and other events), visual arts (including artwork, illustrations and photography), performing arts (including music, lyrics, songs, sound recordings and scripts), literary works (including fiction, non-fiction, poetry, articles, periodicals, blogs, interviews, magazines, newsletters, newspapers, serials, text, brochures, books and booklets), motion pictures (including videos, animations, movies, motion pictures, audiovisual works, footage, films and multimedia works), digital content (including computer programs, blogs, websites, databases, mask works, apps, screen displays and virtual reality environments), images, photographs, recordings (audio, visual and audiovisual), writings, text, art, sounds, live streaming, media, graphics, digital assets, renderings, sketches, drawings, computer-aided design (CAD) drawings (including all native, source files related thereto), computer models, computer code, software, source code, object code, mobile applications and other software-based applications, algorithms, routines, subroutines, logic, programming notes, graphical user interfaces (GUIs), application program interfaces (APIs), software development kits (SDKs), schematics, flowcharts, user manuals, guides, documentation, compilations of data, data libraries, data sets, data files, databases, software security codes, computer passwords, trade secrets, know-how, data, technical information, technologies, trademarks, service marks, marks, product names, service names, business names, logos, slogans, designs, symbols, trade dress, domain names, domain name registrations, uniform resource locators (URLs), social media account names, product concepts, specifications and compilations, together with the following: (a) all electronic and digital forms of the foregoing; (b) all patent rights, copyrights, rights of paternity, integrity, disclosure and withdrawal related to such copyrights and any other rights that may be known as or referred to as “moral rights,” trade secret rights, trademark rights, goodwill related to such trademark rights, intellectual property rights, data property rights and other property rights in and to the foregoing, whether statutory or arising under common law, recognized in any jurisdiction throughout the world; (c) all applications for the foregoing, including applications for patents, copyrights and trademarks; (d) all patents and registrations resulting from or relating to the foregoing applications and items; and (e) all other intangible and intellectual property throughout the world.
4.2 Ownership of IP Assets. As between the Parties, Company will solely own all of the following IP and items other than Contractor IP: (a) (i) all IP resulting from, arising from or created during the course of the Services, whether made, conceived, developed or reduced to practice by Contractor, Personnel or Company, alone, jointly or with others; (ii) all IP embodied by or incorporated into any Deliverable or otherwise fixed in any tangible medium of expression of any Deliverable; (iii) all other IP that otherwise results from Contractor’s performance under this Agreement; (iv) all tangible, physical, digital, and electronic forms of all Deliverables; and (v) all enhancements, improvements, derivatives and modifications of the Deliverables or any portion thereof (whether made, conceived, developed or reduced to practice by Contractor, Personnel or Company, alone, jointly or with others; and (b) all patent rights, copyrights, database rights, trade secret rights and all other intellectual property rights and tangible property rights in and to the items listed in the foregoing subsection (a) (the items provided in the foregoing subsections (a) and (b) being collectively referred to as the “IP Assets”). Except to the extent Contractor resides in California, (1) all works within the IP Assets will be considered works made for hire within the meaning of the work made for hire definition in 17 U.S.C. §101 of the U.S. Copyright Act, specially ordered by Company for use as such works, (2) Company will be deemed the author of such works, and (3) the title in such works (and all copyrights therein) will vest initially in Company. To the extent necessary to fully vest ownership of all IP Assets in Company, Contractor hereby assigns, transfers and conveys (and agrees to further do so and to require the Personnel to do so) to Company, all of Contractor’s and Personnel’s right, title and interest in and to the IP Assets.
4.3 Limited License to Contractor. Subject to the terms and conditions of this Agreement, Company hereby grants to Contractor, a non-assignable, non-sublicensable, non-exclusive, limited license to use the IP Assets (“Limited License”). Except to the extent the applicable SOW expressly provides otherwise, the Limited License will: (a) be exercisable solely for purposes of performing Services or producing Deliverables under the applicable SOW; (b) be exercisable solely during the period of such SOW; and (c) automatically terminate upon the termination or expiration of the SOW period or this Agreement, whichever occurs first.
4.4 Disclosure and Cooperation. Contractor will promptly provide Company with a written disclosure and detailed description of each piece of IP Asset invented or authored by Contractor or any Personnel, including the identity of the authors and inventors, if any. Contractor will cooperate with Company in its efforts to protect, perfect and fully enjoy all of its rights in and to the IP Assets. Such cooperation will include: (a) executing assignment instruments, power of attorney instruments, documents and forms for patent, trademark and copyright applications, and other instruments; (b) providing detailed information related to inventions and works of authorship; and (c) performing such other acts as Company may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining or enforcing the IP Assets or the assignment thereof. Contractor will not charge Company, and Company will owe no payments to Contractor, in connection with any of Contractor’s activities under this Section.
4.5 Power of Attorney for IP Assets. Contractor hereby irrevocably designates and appoints Company and its duly authorized officers and agents as Contractor’s agents and attorneys-in-fact, which appointment is coupled with an interest, to: (a) act for and on Contractor’s behalf to execute, verify and file any documents or instruments for Company’s purposes of defending, enforcing and perfecting the IP Assets, and otherwise seeking intellectual property protection for the IP Assets; and (b) do all other lawfully permitted acts to fully vest Company’s ownership rights in the IP Assets, all with the same legal force and effect as if executed, filed or performed by Contractor.
4.6 Security Interest in IP Assets. To secure Contractor’s assignment obligations under this Agreement, Contractor hereby grants to Company a first priority security interest, having priority over all other security interests, in and to any and all IP Assets in which Contractor might claim ownership or any other interest. Company may record such security interest with the state and federal recording authorities or any other recording authorities, and Contractor will cooperate with such recording efforts, including the execution of documents.
4.7 Waiver of Inspection, Credit and Attribution Rights. Company will have the sole and exclusive authority, in its sole discretion, to determine whether, when and how to edit, publish and disseminate any Deliverable. Except to the extent the applicable SOW expressly provides otherwise, Company will have the sole right to include or exclude any attribution information related to Contractor’s or Personnel’s involvement with any Deliverable. Except to the extent the applicable SOW expressly provides otherwise, Contractor hereby waives and relinquishes any and all rights to: (a) inspect or approve the finished or edited versions of any Deliverable or IP Asset or any related publication, production or work, now or in the future; (b) any royalties or other compensation (other than any fees owed under Section 2.1) in connection with the rights granted by Contractor under this Agreement or the publication or other use of any Deliverable or IP Asset, now or in the future; (c) require or receive any credit or attribution in association with any Deliverable or IP Asset or any related publication, production or work, now or in the future; and (d) require the listing or publication of the name or biography of Contractor or any Personnel in association with any Deliverable, IP Asset or any related publication, production or work.
4.8 Restrictions. Contractor will not, directly or indirectly: (a) apply or file for any patent, copyright or trademark protection for any Deliverable or IP Asset; or (b) initiate any legal action or legal proceeding to challenge or contest the validity of any IP Asset, the enforceability of any IP Asset, or Company’s full ownership of any IP Asset.
4.9 Reserved Rights. Nothing in this Agreement will provide Contractor with ownership of any IP Asset. Except for the Limited License, Contractor will not receive any license, right or interest (express, implied or otherwise) in or to any IP Asset.
ARTICLE 5 – CONFIDENTIALITY
5.1 Confidential Information. From time to time during the term of this Agreement, Company may disclose to Contractor or provide Contractor with access to, confidential or proprietary information (which may or may not be identified as confidential or proprietary) in an oral, electronic or written communication, including: (a) the IP Assets, other IP, and the information in the SOWs; (b) the names and personally identifiable information of Company’s employees, agents, affiliates, service providers, vendors and customers; and (c) trade secrets, customer lists, prospective customer lists, marketing methods, pricing policies, product concepts, service concepts, business information, financial information and legal information (the foregoing items set forth in subsections (a) through (c) being collectively referred to as “Confidential Information”).
5.2 Non-Disclosure and Restrictions. Subject to Section 5.4, during and after the term of this Agreement, Contractor will: (a) keep and maintain the Confidential Information in confidence; (b) take adequate steps and implement adequate procedures to maintain the Confidential Information in confidence; and (c) not use the Confidential Information for any purpose or reason other than for performing Services during the term of this Agreement.
5.3 Return of Confidential Information Upon Termination. Within five (5) business days after the termination of this Agreement, Contractor will, in accordance with Company’s instructions, either: (a) deliver to Company all documents and files in Contractor’s possession that contain Confidential Information; or (b) permanently destroy such documents and files. Upon Company’s request, Contractor will sign and deliver to Company, a written confirmation certifying that Contractor has complied with this Section.
5.4 Exceptions to Confidentiality Duty. The obligations under this Article 5 will not apply to any information that: (a) is known to Contractor before receipt thereof as evidenced by Contractor’s written records existing prior to such receipt; (b) is within or falls within the public domain through no act or omission of Contractor or any Personnel; or (c) is required to be disclosed by a court of law; provided, however, that Contractor will notify Company of any such requirement in a timely manner so that Company is afforded a reasonable opportunity to seek an appropriate protective order.
ARTICLE 6 – REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties by Contractor. Contractor hereby represents and warrants that:
(a) Contractor is an individual or entity with full power and authority to enter into and perform this Agreement, and the execution and performance of this Agreement does not conflict with or violate any agreement to which Contractor is a party, any court order to which Contractor is subject or any of Contractor’s organizational documents;
(b) Contractor, if an individual, is at least eighteen (18) years of age and fully competent;
(c) Contractor and all Personnel are (and will remain) fully trained and qualified to properly perform the Services and do not need any training from Company;
(d) all information provided by Contractor to Company, including the information of Contractor set forth in the SOWs, will be true and accurate;
(e) no Deliverable will include any IP in which any third party has any right, title or interest except to the extent the applicable SOW expressly provides otherwise or Company has provided Contractor with Company’s prior, written consent for such inclusion under Section 3.2;
(f) Contractor has fully read and understands all of the provisions of this Agreement; and
(g) in the event that: (i) any SOW requires any Deliverable to be an original creation of Contractor; or (ii) Contractor otherwise indicates to Company that any Deliverable is an original creation of Contractor or any Personnel, such Deliverable will:
(1) not have been published prior to Contractor’s delivery of such Deliverable to Company;
(2) not have been in the public domain as of the date of Contractor’s delivery of such Deliverable to Company;
(3) not have been owned, in whole or in part, by any third party as of the date of Contractor’s delivery of such Deliverable to Company;
(4) not have been subject to any third party rights as of the date of Contractor’s delivery of such Deliverable to Company;
(5) be reproducible, editable, distributable and publishable without violating any third party rights;
(6) be accurate based on facts ascertained through reasonable inquiry and research in accordance with applicable journalistic standards;
(7) not have been obtained by unlawful means; and
(8) not contain any material, content or information that is slanderous, libelous, obscene or otherwise contrary to applicable law.
6.2 Waiver of Warranties; Assumption of Risk. Company hereby disclaims and waives any and all representations and warranties (whether express or implied) relating to: (a) the safety of any exercise, act or behavior performed by Contractor or any Personnel during the Services; or (b) the ability of Contractor to achieve any particular level of profit related to this Agreement. Contractor hereby assumes all risks relating to all acts performed by Contractor and any Personnel during the Services, including the risks of loss, harm, injury, pain, suffering and death.
ARTICLE 7 – LIMITATION OF LIABILITY
7.1 No Special Damages. UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS RELATED PERSONS OR AFFILIATES BE LIABLE TO CONTRACTOR OR ITS RELATED PERSONS OR AFFILIATES FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE, WHATSOEVER, WHETHER SUFFERED BY CONTRACTOR, ANY PERSONNEL OR ANY THIRD PARTY, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING LOST PROFITS, LOST OPPORTUNITIES, OR OTHER ECONOMIC LOSS) REGARDLESS OF WHETHER ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
7.2 Maximum Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE LIABILITY OF COMPANY TO CONTRACTOR FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION THAT IMPOSES LIABILITY, WHETHER IN CONTRACT, EQUITY, TORT, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE, WILL BE LIMITED TO, AND WILL NOT EXCEED THE TOTAL AMOUNT OF FEES THAT COMPANY HAS PAID TO CONTRACTOR FOR SERVICES WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM THAT GIVES RISE TO SUCH LIABILITY.
ARTICLE 8 – COVID-19 WAIVER
8.1 Health Crisis. Contractor acknowledges that federal and state government officials have declared that, as of the Effective Date, there exists a public health crisis in the United States and elsewhere related to COVID-19. Despite such crisis, Contractor hereby confirms that Contractor and all Personnel are voluntarily electing to perform Services at public sites and places, as required by the applicable SOW (collectively, “Sites”).
8.2 Service Suspension.
8.2.1 Contractor will suspend the Services of any Personnel member, and will prohibit such Personnel from performing any Services or visiting any Site, if such member has tested positive for COVID-19 or, within (14) calendar days prior to performing Services, such member had any symptoms of COVID-19 (including fever, dry cough, fatigue, shortness of breath, difficulty breathing, chills, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea of vomiting, or diarrhea).
8.2.2 Contractor will suspend the Services of any Personnel member, and will prohibit such member from performing any Services or visiting any Site, if, within fourteen (14) calendar days prior to performing the Services, such member was in contact with any individual diagnosed with COVID-19 or any individual currently waiting for test results confirming the possibility of a COVID-19 diagnosis. Contractor agrees that in such situations, Contractor will suspend the Services of such Personnel member, and will prohibit such member from performing any Services or visiting any Site until: (i) fourteen (14) calendar days after the symptoms first appeared and such member is no longer showing any symptoms; (ii) fourteen (14) calendar days after such member’s last contact with an individual diagnosed with COVID-19 or awaiting COVID-19 test results; or (iii) a healthcare provider has confirmed in writing that such Personnel member has tested negative for COVID-19 or that such member’s symptoms were not due to COVID-19.
8.3 Risk at Sites. Because the Sites may be open for use by other individuals, Contractor understands that the Personnel are at higher risk of contracting COVID-19. Contractor understands that Company cannot prevent the possible transmission or contraction of COVID-19.
8.4 Release. Contractor hereby knowingly and voluntarily agrees to release and discharge all members of the Company Group (defined in Section 9.1) from and against any and all claims, liabilities, suits, demands, causes of action and legal liabilities resulting from performing any Services or visiting any Site related in any way to COVID-19, to the extent permissible by law, even if the cause, damages, or injuries are alleged to be the fault of or alleged to be caused by the negligence or carelessness of any member of the Company Group.
8.5 Understanding. Contractor hereby acknowledges and represents that Contractor has read the provisions of this Article 8 and the other provisions of this Agreement, understands all of such provisions and has signed this Agreement voluntarily as Contractor’s own free act and deed. Contractor hereby acknowledges and represents that Contractor is sufficiently informed about the risks involved in performing the Services and visiting the Sites in deciding whether to sign this Agreement.
ARTICLE 9 – RELEASE AND INDEMNIFICATION
9.1 Release and Indemnification. Contractor hereby, at all times during and after the term of this Agreement, releases, waives, discharges, covenants not to sue, defends, indemnifies and holds harmless Company, including its affiliates, managers, directors, officers, members, representatives, employees, agents, successors, assigns and others acting on Company’s behalf (collectively, “Company Group”), from and against any and all losses, claims, lawsuits, proceedings, expenses, recoveries and damages, including reasonable legal expenses, costs and attorneys’ fees, arising out of or relating to: (a) any disinformation, inaccuracy, untruth, falsity, slander, libel, obscenity or misrepresentation within any Deliverable; (b) any harm, bodily injury, pain, suffering, death, loss of use, monetary loss or any other injury experienced by Contractor or any Personnel in connection with any Service, any Deliverable or any activity related to this Agreement (regardless of whether caused by the negligence of any member of Company Group or otherwise), including any such event relating in any way to the COVID-19 virus; (c) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from Contractor’s breach of this Agreement or from the use of any Deliverable, IP, product or service provided by Contractor to Company; (d) any violation of any right of any Personnel; (e) any violation of applicable law by Contractor or any Personnel; (f) any recklessness, negligence or wrongdoing (intentional or otherwise) of Contractor or any Personnel; (g) any breach of any warranty, representation, covenant or obligation in this Agreement by Contractor; or (h) any workers’ compensation claim or unemployment insurance claim made by any Personnel or made by Contractor or on Contractor’s behalf.
9.2 Procedures. In performing its obligations under this Article 9, Contractor will not admit any liability or wrongdoing on the part of Company without Company’s prior written consent. Contractor will promptly and fully reimburse Company for any loss suffered or incurred by Contractor if: (a) an event occurs that gives rise to Contractor’s obligation under this Article 9; and (b) such event is the cause of such loss.
ARTICLE 10 – TERM AND TERMINATION
10.1 Term. The term of this Agreement will begin on the Effective Date and end upon the expiration of twelve (12) months after the Effective Date (“Initial Period”) unless extended or earlier terminated in accordance with the terms of this Article 10 set forth below.
10.2 Automatic Extension. Upon the expiration of the Initial Period, the term of this Agreement will be automatically extended for an extension period equal in length to the Initial Period unless either Party provides the other Party with a written termination notice at least ten (10) business days before the expiration of the Initial Period or the then-current extension period, as the case may be. Upon each such extension, the period of each SOW in effect as of the date of such extension will be automatically extended for an SOW extension period equal in length to such period of the SOW.
10.3 Early Termination. Each Party will have the right to terminate any SOW (or this Agreement entirely) at any time, with or without cause, by providing the other Party with at least thirty (30) days’ advance written notice.
10.4 Termination for Breach. If either Party breaches a term or condition of this Agreement and fails to cure the breach within five (5) business days after receiving written specification of the breach from the non-breaching Party, then the non-breaching Party may terminate this Agreement entirely upon written notice to the breaching Party.
10.5 Termination for Harm to Company’s Reputation. If Contractor perform or engages in any act, conduct or behavior that harms or could harm Company’s reputation, Company shall have the right to immediately terminate this Agreement upon written notice to Contractor. Without limiting the foregoing, Company may exercise such termination right if Contractor publicly performs any of the following acts (or publishes any content, works or materials related thereto): slander, libel, obscenity, harassment, threatening conduct, offensive conduct, unethical conduct, pornography, racism, sexism, hatred, bigotry, the usage of drugs, guns, firearms or illegal items, violence, assault, battery, or violation of applicable law.
10.6 Survival. The Limited License will not survive the termination or expiration of the period of the applicable SOW or this Agreement except to the extent such SOW expressly provides otherwise. The rights and obligations under the following provisions of this Agreement will survive the termination or expiration of this Agreement: Sections 2.4, 3.3, 3.4, 4.1 and 4.2, Sections 4.4 through 4.9, and Articles 5 through 11, together with all other provisions which, by their terms, contemplate survival.
ARTICLE 11 – MISCELLANEOUS
11.1 Independent Contractors. In the performance of this Agreement, the Parties will at all times act as and be deemed to be independent contractors. Neither Party nor any of its employees, agents or officers will be considered an employee, joint venturer, agent or partner of the other Party. Neither Party is authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of the other. Each Party’s personnel and employees will at all times be under the exclusive direction and control of such Party.
11.2 Notices. All notices under this Agreement will be in writing and may be given by personal delivery, nationally recognized courier service, mail, email or any other commercially reasonable method to each party’s postal or email address as provided in the applicable SOW, the first paragraph of this Agreement or as otherwise provided in writing to the other Party. Notices will be deemed to have been received upon the earlier of the following: (a) actual receipt; (b) delivery, if delivered personally or by a nationally or internationally recognized courier service; (c) one business day after being deposited with a nationally or internationally recognized courier service for delivery within twenty-four (24) hours; (d) three (3) business days after being deposited in U.S. mail, by registered or certified mail, return receipt requested and postage prepaid; or (e) a manual, non-automated email reply by the recipient of an emailed notice.
11.3 Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that Company may assign this Agreement to any affiliate or third party in connection with any asset sale, merger, corporate reorganization or contractual assignment. Any purported assignment in violation of this Section will be null and void. This Agreement will be binding on the Parties and their respective successors and permitted assigns.
11.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any conflict of laws principles.
11.5 Jurisdiction and Venue. The courts of the State of New York (state and federal) will have sole and exclusive jurisdiction over any disputes or actions arising out of or relating to this Agreement. Each Party hereby waives all claims of immunity from such jurisdiction. Venue for any action arising out of or relating to this Agreement will exclusively be located in the state courts in Erie County of the State of New York or in the United States District Court for the Western District of New York.
11.6 Equitable Relief. Notwithstanding anything in this Agreement to the contrary, Company will have the right to immediately apply to a court of competent jurisdiction to seek equitable relief (in addition to any other relief available at law) to protect its rights and interests under Article 3, 4, 5 or 8 of this Agreement.
11.7 Waiver. Neither Party’s delay or failure in enforcing any right or remedy afforded under this Agreement or by law will prejudice or operate to waive that right or remedy or any other available right or remedy.
11.8 Severability. If any term of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, or becomes invalid or unenforceable by operation of law, the remainder of this Agreement will continue in full force and effect, and such term will be replaced with another term consistent with the purpose and intent of this Agreement.
11.9 Judicial Modification. If any provision of this Agreement is deemed unenforceable because of its scope in terms of area, time, business activities, ownership or other matters, the court making such determination will have the power to modify such provision, through reductions or limitations thereon or to delete specific words or phrases, known as blue-pencilling, and in its reduced or blue-penciled form, such provision will then be enforceable and will be enforced under applicable law.
11.10 Amendment. Except as provided in this Section, this Agreement may not be modified, and the rights, obligations and restrictions hereunder may not be altered or waived. The top of this Agreement states the date this version of this Agreement (“Original Version”) was first posted to Company’s website, www.wdw-magazine.com (“Website”). From time to time after such posting, Company may post to the Website, a modified version of the Original Version of this Agreement (each, a “Modified Version”). The Original Version will apply to and govern all SOWs having an SOW Date before Company posts any Modified Version to the Website. Each Modified Version will apply to and govern each SOW having an SOW Date after Company posts such Modified Version to the Website. This Agreement will not be modified by any course of dealing, course of performance or usage of trade; provided, however, that Contractor’s initiation of (or receipt of payment for) any Service or Deliverable production related to any SOW will be deemed Contractor’s binding consent and agreement to amend this Agreement as set forth in the Modified Version that was posted to the Website as of the SOW Date of such SOW.
11.11 Entire Agreement. This Agreement, including the SOWs, forms the complete agreement between the Parties, and this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter of this Agreement.
11.12 Previous Agreements. This Agreement will supersede, terminate and wholly replace any previous agreement between the Parties relating to services similar to the type and nature of the Services.
11.13 Controlling Terms; Conflicts. This Agreement will supersede the terms in any non-Company document (including any order confirmation, acknowledgment, email, letter, invoice or other document prepared by Contractor), and no terms included in any non-Company document will apply to any Services or Deliverables. In the event of a conflict between the terms of any SOW and the terms within the Articles of this Agreement, the terms within the Articles of this Agreement will control and prevail.
11.14 Construction; Interpretation. Each Party acknowledges and agrees that: (a) the Parties have participated jointly in the negotiation and drafting of this Agreement; (b) it or its counsel has reviewed and negotiated the terms and provisions of this Agreement; (c) no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement or the changes made through revisions; (d) the rule of construction to the effect that any ambiguities are resolved against the drafting Party will not be employed in the interpretation of this Agreement; (e) any reference to applicable law will be deemed to refer to all national, federal, state, local, municipal and foreign statutes and laws, including all rules and regulations promulgated thereunder; (f) all terms defined in the singular form will have the same meaning in the plural form, and all terms defined in the plural form will have the same meaning in the singular form; (g) the word “will” has the same legal effect and force as the word “shall;” and (h) the word “including” means “including, without limitation,” the word “includes” means “includes, without limitation,” and the word “or” will not be exclusive.
11.15 Language. This Agreement has been written and executed in English and will be interpreted in the English language. In the event any translation of this Agreement into another language is made, the English language version of this Agreement will govern in case of any conflict.
11.16 Further Assurances and Cooperation. Upon the reasonable request of either Party, the other Party will execute any additional certificates, instruments or other documents that may be reasonably necessary to fully implement this Agreement.
11.17 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one instrument.
11.18 Signature of Initial SOW. A Party’s signature of the initial SOW will be deemed its written signature of this Agreement.
11.19 Electronic Signature. For purposes of this Agreement, a Party’s electronic signature will be deemed its written signature of this Agreement, and its electronic signature will include any image that represents its representative’s signature, including the representative’s printed name displayed in standard or stylized format on an electronic document in PDF or other digital format. Each Party’s electronic signature of this Agreement will be deemed, and will have the same force and effect as, the original, hand-written signing of this Agreement.
11.20 Signature of SOWs. Either Party may sign any SOW in its sole discretion; provided, however, that its signature will not be required to make such SOW legally binding. Instead, such SOW will be accepted (or deemed accepted) by Contractor and binding upon the Parties in accordance with Section 1.2. Any signed copy of any SOW in digital (e.g., PDF) or facsimile form will be deemed and considered as an original, binding and enforceable document. Each Party hereby agrees that its electronic signature of any SOW will be deemed, and will have the same force and effect as, its original, hand-written signature of such SOW.
11.21 Signature of Agreement. Company will be deemed to have duly signed this Agreement (including the Original Version and each Modified Version) upon posting the Original Version and each Modified Version to the Website. Contractor will be deemed to have duly signed this Agreement (including the Original Version and each Modified Version) upon performing the earlier of the following steps of assent: (a) signing any SOW that refers to this Agreement; (b) clicking or activating any checkbox, selector or consent indicator that accompanies the Original Version or any Modified Version, as the case may be; and (c) initiating (or receiving payment for) any Service or Deliverable.
End of Master Service Agreement