Clickx Master Services Agreement
By using and/or otherwise accessing any of the services offered by Clickx you (“Client”) agree to be bound by the terms of this CLEINT MASTER SERVICES AGREEMENT (“Agreement”). Please read these terms and conditions carefully, as they describe your legal rights and obligations.
ARTICLE 1. AGREEMENT DOCUMENTS AND DEFINITIONS
1.1 This Agreement, and any accompanying appendices, addendums, attachments, Plans, duplicates, or copies, constitutes the entire Agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
“Customer” – any person(s) or entity(ies) engaging Label to provide digital marketing services.
“Services” – means the products and/or work ordered by Label or provided to Label by Company, to be performed for Customer on behalf of Label.
“Plan” – refers to the service and product package(s) selected and purchased by Label on the Clickx website.
ARTICLE 2. WHITE LABEL BRANDING
2.1 All Services provided by Company to Customer on behalf of Label shall be branded under Label’s name and brand. Company’s name, trademarks, trade name, trade dress, designs, and logo shall not appear on the final product of any Services. Company does not grant any license, express or implied, to Label for any Company names, logos, or any other intellectual property.
ARTICLE 3. LABEL REPRESENTATIONS AND WARRANTIES. For the duration of this Agreement, Label makes the following representations and warranties.
3.1 That it is fully authorized and empowered to enter into this Agreement, and that its performance of the obligations under this Agreement will not violate any agreement between Label and any other person, firm or organization or any law or governmental regulation.
3.2 That it has notified Customer of Label’s right and intent to engage Company to perform services on its behalf to Customer.
3.3 That it shall be responsible for providing Company with all the necessary information concerning the Services.
3.4 That is has obtained and shall maintain for the duration of this Agreement liability insurance policies from financially sound and reputable insurance companies in such amounts, with such deductibles and covering such risks as are customarily carried by entities engaged in similar businesses. Label shall add Company as an additional insured on all such policies and shall provide proof of insurance from time to time as demanded by Company.
ARTICLE 4. COMPANY REPRESENTATIONS AND WARRANTIES. For the duration of this Agreement, Company makes the following representations and warranties.
4.1 That it is fully authorized and empowered to enter into this Agreement, and that its performance of the obligations under this Agreement will not violate any agreement between Company and any other person, firm or organization or any law or governmental regulation.
ARTICLE 5. DISCLAIMER OF WARRANTY
5.1 The warranties contained herein are the only warranties made by the Parties hereunder. Each Party makes no other warranty, whether express or implied, and expressly excludes and disclaims all other warranties and representations of any kind.
5.2 COMPANY DOES NOT WARRANT THAT SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. LABEL AND CUSTOMER SOLELY ASSUME THE RISK AS TO QUALITY AND PERFORMANCE UNDER THIS AGREEMENT. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM.
ARTICLE 6. RELATIONSHIP OF PARTIES
6.1 Company is an independent contractor of Label. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
ARTICLE 7. TERM, SERVICES, AND COST
7.1 This Agreement shall commence on the date executed by the Parties (the “Effective Date”) for a term of one (1) month (the “Term”). This Agreement shall automatically renew for subsequent month for additional one-month terms unless terminated by the Parties.
7.2 Beginning on the Effective Date, and remaining in effect for the term of this Agreement, Company shall provide the services mutually agreed upon and described in the Plan purchased by Label from the Clickx website, which is incorporated into this Agreement by this reference. All services to be provided by Company hereunder are referred to as “Services.” The Parties may use this Agreement for multiple Plans.
7.3 Some of Company’s expenses, including operation and equipment expenses, may be eligible for reimbursement by Label, as set forth in the applicable Plan. The work performed by Company shall be performed at the rate(s) set forth in the applicable Plan.
ARTICLE 8. LABEL DUTIES AND PAYMENT
8.1 Prior to the commencement of any of the Services, and upon execution of this Agreement, Label shall pay Company the sum total is set forth in the applicable Plan. This shall be the case for each Plan purchased by Label, whether at once or if purchased at separate times. In the event the payment remitted by Label does not ultimately pay for all of the Services performed by Company, Company reserves the right to ask for additional payment at its sole discretion, from time to time, on an as need basis.
8.2 Third Party Costs and Expenses. Domain registrations, SSL certificates, Merchant Accounts, website hosting, and any other third-party setup costs and/or monthly fees are separate and are not included in this Agreement. Label is solely responsible for third-party costs.
8.3 Payment may be made by credit card or ACH payment to Clickx.
8.4 In the event that payment of any for any of the Services is not made within the terms set forth in this Agreement, Company shall have the right, at its option and without prejudicing any other right, to cease work on the Services and withhold or cause to withhold the release of any documents or work product prepared by Company for which Company was not paid. Company may also delay or cancel the release of any deliverable created on behalf of Customer in furtherance of the Services for which Company has not been paid. Payments due and unpaid shall bear interest from and after the date of payment is due at a rate of nine percent (9%) per annum. In the event that Company initiates legal action to collect fees due it under this Agreement, Company shall be entitled to recover from Label its reasonable attorneys’ fees, costs, and expenses incurred in any such action.
8.5 Label’s obligation to pay shall not be conditioned on Customer’s payment to Label. In the event Customer fails or refuses to pay Label for services related to this Agreement, Label shall remain obligated to pay Company pursuant to the applicable Plan, and Company shall not be obligated to refund any payment remitted by Label.
8.6 In no event shall Company be obligated to refund any or all of monies paid to it under this Agreement.
8.7 Label Referrals. In the event Label refers a prospective client to Company for use of the Company’s services, and the prospective client enters into an agreement with Company such that it becomes a label client to Company (“Referred Client”), Label will be entitled to a referral fee equal to five percent (5%) of the total fee paid by the Referred Client to Company during the first six (6) months of the relationship between Referred Client and Company (“Referral Fee”). The Referred Client must use Label’s personal link, provided by Company in Label’s portal, to sign up with Company in order for Label to qualify for the Referral Fee. For the avoidance of doubt, parties already known to, being recruited by, or engaged in discussions with Company cannot be Referred Clients. Qualification for and payment of the Referral Fee shall have no bearing on Label’s duty to pay fees under this Agreement. Label is not entitled to any Referral Fee after Referred Client terminates its relationship with Company, even where Referred Client subsequently enters a new agreement with Company.
8.8 Promotions and Offers. From time to time, at the sole discretion of Company, Company shall have the right, but not the obligation, to offer promotions affecting the pricing and offerings of goods and services of Company. Label should regularly consult its Company portal for these promotions.
ARTICLE 9. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
9.1 Label acknowledges that it will have access to information that is treated as confidential and proprietary by Company including, without limitation, all ideas and design concepts arising during the Services (whether implemented or not), in each case whether spoken, written, printed, electronic or in any other form or medium (collectively, the “Confidential Information”). Label agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of Company in each instance, and not to use any Confidential Information for any purpose except as required by this Agreement. Label shall notify Company immediately in the event it becomes aware of any loss or disclosure of any Confidential Information.
9.2 Label agrees that all content provided by Company to Label, or to Customer on behalf of Label, in furtherance of the Services described hereunder, including, without limitation, copyrights, design rights, moral rights, and all other intellectual property rights recognized anywhere in the world in the work performed by Company, including work related to the Services rendered pursuant to this Agreement, (including specifications, designs, dashboards, wireframes, source code, object code, drawings, illustrations, texts, scores, photographs, prototypes, objects, models and mock-ups, whether stored or displayed physically or electronically and in whatever medium), is owned solely and legally by Company unless stated otherwise in writing by Company. Any final deliverable created by Company and delivered to Customer shall be owned by Customer upon delivery, but the underlying components shall remain owned by Company.
9.3 Company Software. Company has developed its own software (“Clickx Software”) for use in furtherance of the Services. While Label and/or Customer may have access to Clickx Software during the term of this Agreement, Company shall remain the sole owner of and retain all rights in Clickx Software. In no circumstance shall any act or inaction of Company be construed as transferring, relinquishing, or forfeiting its rights and ownership of the Clickx Software. For the term of this Agreement, and as permitted by Company, Label may have a non-exclusive, worldwide, non-transferable, non-sublicensable license for the use of Clickx Software as needed in furtherance of this Agreement. Company reserves the right to revoke Label and/or Customer’s access to Clickx Software at any time for any reason.
9.4 Company Case Studies. Company may grant Label access to and use of Company Case Studies during the Term of this Agreement. Label acknowledges that all Company Case Studies are owned solely and legally by Company, and Label’s access to and use of Company Case Studies is at the sole discretion of Company. Label’s access to and use of Company Case Studies is conditioned upon Label having an active account, in good standing, with Company. Upon expiration or Termination of this Agreement, Label shall cease all access to and use of Company Case Studies for any reason, and upon request by Company, Label shall certify removal of Company Case Studies from all Label materials and destruction of all copies of same. In any event, Label agrees that it will immediately remove any and all Company content, including, but not limited to, Company Case Studies, from Label materials upon request by Company.
9.5 Label shall comply with all federal, state, and local laws, rules, regulations and ordinances with respect to the performance of any of its obligations under this Agreement. Label shall not: (a) modify, copy or create derivative works based on Services or any part thereof, (b) reverse engineer, disassemble, or decompile any of our Services or any part of Clickx Software to try and find our source code; (c) use or launch any automated system, including, “robots”, “crawlers”, “spiders”, or “offline readers”; (d) use the Services in any manner that damages, disables, overburdens, or impairs any of Company’s websites or interferes with any other party’s use of the Services; (e) attempt to gain unauthorized access to the Services; or (f) access the Services other than through Company’s interface. Any violation of this provision shall be deemed to be a material breach of this Agreement and, in such event, Company shall have the right, in addition to retaining all monies paid hereunder and pursuing all other remedies available at law or in equity, to refuse or terminate Customer’s access to services. The restrictions contained in this Section shall expressly survive the termination or expiration of this Agreement.
9.6 Label shall request Customer’s authorization for Company’s use of Customer’s name and logo for use in marketing and promotional materials. Company agrees not to disclose to any non-affiliate third party any Customer personal or financial information without Customer’s written consent. Label authorizes Company to use Label’s name and logo in marketing and promotional materials.
ARTICLE 10. LIABILITY
10.1 Company shall not be liable for any delay or default in performing this Agreement if such delay or default is caused by conditions beyond its reasonable control (force majeure conditions). Any delays, cancellations, or changes in pricing as a result of Label’s failure to make timely payment shall be the sole responsibility of Label.
10.2 Company makes no representations or warranties and does not guarantee any content provided by Customer or Label in furtherance of the Services. Company shall have no responsibility for the accuracy and safeguarding of Customer’s content. Company does not have control of, does not insure, and is not liable for the content provided by Customer or Label, and as such, shall not be liable for any improper use of content which Customer or Label is legally prohibited from using.
10.3 Company shall not be liable for delays due to the failure of service or the acts or omissions of outside service providers, such as third-party servers which host Customer’s digital content.
10.4 Company shall have no obligation to retain Customer’s data after the expiration or termination of this Agreement. Company shall have no obligation to make data, Clickx Software, or any services available to Customer or Label after the expiration or termination of this Agreement. As a courtesy to Label, Company may agree, but is not obligated, to hold Customer data for a period of thirty (30) days after the expiration or termination of this Agreement. If Customer or Label desires to export Customer’s data, they should do so within the thirty-day (30) period.
10.5 Events that might delay final delivery or individual aspects of delivery of the Services, for which Company shall not be liable, include delays in receiving Customer approvals, delays in receiving Customer content and images, delays in receiving Customer feedback and revision notes, delays in receiving payment from Label, and/or delays in providing information or access to third party accounts.
10.6 Company works closely with its Affiliate, OneIMS, Inc., which is an Illinois corporation that provides resources such as personnel and equipment to Company which enables Company to provide the Services. Label understands and agrees that in no event shall OneIMS, Inc., or its officers or directors, be liable for any claim arising out of or relating to this Agreement.
10.7 Company shall have the right to utilize subcontractors, third party vendors, and/or independent contractors in furtherance of this Agreement. Company shall not be liable for the acts or omissions of any such third parties.
10.8 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE TO LABEL OR ITS AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED LOSS OF BUSINESS, LOSS OF PROFITS, OR REPUTATIONAL HARM, EVEN IF LABEL WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY. LABEL AGREES THAT THE MAXIMUM AMOUNT OF DAMAGES IT IS ENTITLED TO IN ANY CLAIM ARE NOT TO EXCEED THE TOTAL AMOUNT PAID BY LABEL UNDER THIS AGREEMENT, OR THE AMOUNT PAID BY LABEL IN THE THREE MONTHS PRECEDING RELEVANT CLAIM BY LABEL, WHICHEVER IS THE LESSOR OF THE TWO.
ARTICLE 11. AGREEMENT NOT TO SOLICIT
11.1 During the Term of this Agreement as defined above in Section 7.1, and for a period of twelve (12) months commencing on the date by which this Agreement is terminated, Label shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee or contractor of Company or OneIMS, Inc. or encourage any such employee or contractor to leave such employment.
11.2 During the Term of this Agreement and for a period of twenty-four (24) months thereafter, Label shall not, directly or indirectly, without prior written consent of Company, solicit or otherwise seek to obtain for Label’s benefit (or assist any other person or entity in which Label or its directors, officers, or employees has an interest or by which Label is affiliated) any business from any person, firm, or other entity that is or was a client or customer of Company or OneIMS, Inc., which would be directly or indirectly competitive with the business of Company or any of its Affiliates or contact such client or customer for any purpose directly or indirectly relating to the services that Company or OneIMS, Inc. currently provides.
11.3 Label acknowledges that a breach of threatened breach of this Section 11 would give rise to irreparable harm to Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Label of any such obligations, Company shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). If Company prevails in an action for a breach of this Section 11, Company shall be entitled to its reasonable attorneys’ fees, costs, and expenses incurred in any such action.
ARTICLE 12. INDEMNIFICATION
12.1 Label (“Indemnifying Party”) agrees to indemnify, defend, and hold harmless Company, its Affiliates and their respective officers, directors, employees, agents, representatives, successors, and assigns (“Indemnified Parties”), from and against any and all Third Party claims, damages, losses, suits, actions, demands, proceedings, expenses, and/or liabilities of any kind (including but not limited to reasonable attorneys’ fees and costs incurred and/or those necessary to successfully establish the right to indemnification), threatened, asserted, or filed (collectively, “Claims”), against Company and/or its Affiliates, to the extent that such Claims arise out of or relate to: (a) Label’s breach or alleged breach of any warranty, representation, or covenant made under this Agreement; (b) infringement or misappropriation or alleged infringement or misappropriation of an Intellectual Property Right of a Third Party by Label or Customer; (c) violation of Applicable Law by Label; and (d) Claims by government regulators or agencies for fines, penalties, sanctions, underpayments, or other remedies to the extent such fines, penalties, sanctions, underpayments, or other remedies relate to Label’s failure to perform its responsibilities under this Agreement.
12.2 Company will have the right to approve the counsel selected by Label for defense of the Claims. Company will provide Label reasonably prompt notice of any such Claims and provide reasonable information and assistance, at Label’s expense, to help defend such Claims. Label will not have any right, without Company’s written consent, to settle any such Claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort, or otherwise) on the part of Company or its Affiliates or otherwise requires Company or its Affiliates to take or refrain from taking any material action.
ARTICLE 13. DISPUTE RESOLUTION
13.1 The Parties agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement shall be determined by confidential, final, and binding arbitration in Chicago, Illinois, by one arbitrator in accordance with the then-existing rules for commercial arbitration of the American Arbitration Association. The demand for arbitration shall be made within a reasonable time after notice of the dispute, claim, or controversy has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the dispute, claim, or controversy. If the Parties are not able to agree upon the selection of an arbitrator, within twenty (20) days of the commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association. The arbitrator shall have no authority to award punitive, consequential, special, or indirect damages. Each Party agrees to pay its own expenses associated with any arbitration, subject to Sections 8.4, 11.3, and 12.1 of this Agreement. Any judgment on an award rendered may be entered in any state or federal court having jurisdiction. Except as may be required by law, neither party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties.
ARTICLE 14. TERMINATION
14.1 Label may terminate this Agreement for any reason upon thirty (30) days written notice to Company, sent via electronic mail (email) to ________________________. The termination of this Agreement shall be effective as of thirty (30) days from the delivery of the notice. Company may terminate this Agreement for any reason upon seven (7) days’ notice to Label. If Company terminates this Agreement, the termination of this Agreement shall be effective as of seven (7) days from the delivery of notice to Label. In the event that Company terminates this Agreement, Company reserves the right to not provide Services to Customer or Label. Either Party may terminate this Agreement for cause, if after written notice of the breach to the breaching party the breaching party has failed to cure the breach within five (5) days. Termination for cause is effective immediately after the five-day notice period.
14.2 If the Agreement or any part thereof is cancelled or terminated by either Party after services have been rendered, Label agrees to pay Company any amounts still owing. In the event Label terminates this Agreement, during the thirty (30) day notice period, after proper notice has been served and before termination is effective, Company shall perform the Services under this Agreement and Label shall pay all fees for each month up until the effective date of termination. In the event Label or Customer declines services by Company during the thirty (30) day notice period, Label shall remain obligated to pay all monthly fees up until the date of termination, and Company shall have no obligation to refund any monies paid by Label. If the effective date of termination falls on any date after the first (1st) of a month, all fees for that month shall be due and paid by Label to Company. Upon expiration or termination of this Agreement for any reason, Label’s right to use or acquire Services shall cease and Company shall have no further obligation to make the Services available to Label or Customer and all rights and licenses granted to Label shall cease.
14.3 In the event Company proposes to sell its business operated pursuant to this Agreement, whether by sale of the assets thereof, or otherwise, either Party shall have the option to terminate this Agreement upon the consummation of such sale or at any time thereafter, upon written notice to Company or the buyer of Company’s business.
ARTICLE 15. GOVERNING LAW AND JURISDICTION
15.1 All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction).
15.2 The Parties hereto agree that all actions or proceedings arising out of or relating to this Agreement shall be arbitrated exclusively in the City of Chicago, County of Cook, in the State of Illinois. Each Party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this provision. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this Section 15 by registered or certified mail, return receipt requested, to its known business address.
ARTICLE 16. MISCELLANEOUS
16.1 If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the Parties’ intention. All remaining provisions of this Agreement shall remain fully enforceable and effective for the duration of this Agreement.
16.2 This Agreement shall not be assigned by Label without the express written consent of Company.
16.3 The Parties agree that any provision of this Agreement that due to their nature extend beyond termination of this Agreement, including by not limited to Articles 9, 11, and 12, shall survive any termination of this Agreement.
16.4 This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. This Agreement may be executed by digital signature.
16.5 A failure or delay in exercising any right, power, or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power, or privilege will not be presumed to preclude any subsequent or further exercise of that right, power, or privilege or the exercise of any other right, power, or privilege.