The Muses Digital, Inc.
Terms of Marketing Services
Last Updated: August 31, 2021
- Marketing Services. Subject to the terms of this Agreement, The Muses Digital, Inc. (“Muses”) will use commercially reasonable efforts to render the branding, advertising, marketing, consulting, creative and digital services described in a statement of work or similar ordering document executed or otherwise entered into by Muses and its client (such services, the “Services,” such document a “Work Order,” and each client a “Client”). All Services will be rendered solely pursuant to Work Orders. Each Work Order incorporates these Terms of Marketing Services (these “Terms”) and each reference to a Work Order is a reference to such order incorporating these Terms. In the event of a conflict between the the provisions of a Work Order and the provisions of these Terms, the provisions of the Work Order will prevail to the extent of such conflict. Muses may modify these Terms from time to time. The version of these Terms existing at the time of a Work Order will govern such Work Order.
- Third-Party Vendors. Muses may in the course of providing Services contract with third-party vendors to provide certain specialized services. Under some circumstances, in the course of receiving Services, Client may contract directly with third-party vendors to provide certain specialized services. Muses is not liable to Client for services provided by third-party vendors with whom Client has contracted directly.
- Expenses. Client will pay or promptly reimburse Muses for all reasonable out-of-pocket expenses paid or incurred by Muses in connection with the performance of the Services, upon presentation of expense statements or other evidence of expenses. For the avoidance of doubt, such reasonable out-of-pocket expenses may include advertising costs and bills from applicable websites (including social media websites such as Facebook, Google, and LinkedIn), the out-of-pocket cost for software and services used by Muses in the performance of the Services (including CallRail and similar call tracking and recording software), and the out-of-pocket costs for any third-party vendor. Muses may arrange for any such third-party vendor to bill Client directly.
- Invoices and Taxes. Unless otherwise agreed in a Work Order, Muses will submit to Client itemized invoices on a monthly basis for fees and expenses incurred during the previous month and that were not already paid by Client. Client will pay to Muses the invoiced amounts within 15 days after receipt thereof. Client will pay, reimburse, and hold Muses harmless from all sales, use, transfer, tariffs and all other similar taxes and duties levied or imposed on the provision of the Services, but not including taxes on the income of Muses. Any amount not paid when due will incur a late charge of the lesser of 1.5% per month or the maximum amount permitted under applicable law and Muses will be entitled to all costs of collection of such amount, including reasonable attorney’s fees.
- Confidentiality. Muses will use Confidential Information (defined below) only for the purpose of providing Services. Muses will protect Confidential Information from unauthorized use, access or disclosure in the same manner as Muses protects its own confidential information of a similar nature, but in no event will it exercise less than reasonable care. Muses may disclose Confidential Information to those of its employees, consultants, agents, vendors and suppliers who have a need to know such information for the purpose of performing Services and who are under an obligation of non-use and confidentiality substantially similar to the terms of this section. “Confidential Information” means non-public information related to the Services that is disclosed by Client to Muses and includes, unless excluded under the provisions below: (a) concepts and ideas relating to the current, future and proposed products or services of Client or its subsidiaries or affiliates; (b) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; and (c) the existence of any business discussions, negotiations or agreements between the parties. Confidential Information also includes non-public, proprietary or confidential information of any third-party who may disclose such information to Client or Muses in the course of the Services. Confidential Information includes only such information that is designated as “confidential” or “proprietary” or with similar legend, or which a reasonable person should consider to be confidential and proprietary given its content and the circumstances of disclosure. Confidential Information does not include information that (i) is or becomes generally available to the public through no act or omission of Muses, (ii) is disclosed to Muses by a third party without restrictions on disclosure, (iii) was in Muses’s lawful possession without obligation of confidentiality prior to the disclosure and was not obtained by Muses either directly or indirectly from Client, or (iv) was independently developed by Muses without use of Confidential Information. In addition, this section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that Muses will first have given notice to Client and will have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. All Confidential Information furnished to Muses by Client is the sole and exclusive property of Client or originating third-party. Upon request by Client, Muses will promptly return to Client the original and any copies of the Confidential Information.
- Trademarks. Muses may create or develop logos, trademarks, services marks and other brand identity features (collectively, “Marks”) as a part of the Services. Client, and not Muses, is responsible for confirming the availability and enforceability of any Marks and for the registration of Marks even if Muses assists in such clearance or registration.
- Third-Party Licensing. Websites and other content, designs, and software that may be delivered to Client as a part of the Services may include intellectual property assets belonging to third-parties to be used by Client under separate license. These assets may include, for example, server-side applications, clip art, music, stock images, and other copyrighted work.
- Promotion License. Client hereby permits Muses to use Client’s name and logos on Muses websites and other marketing materials for the purposes of identifying Client as a customer of Muses, including a brief description of services provided. Client hereby permits Muses to use and include limited portions of creative content and other similar work product delivered as a part of the Services in the Muses work portfolio used to promote Muses services to potential customers.
- Proprietary Rights and Licenses. Except as expressly set forth to the contrary in the applicable Work Order, upon and subject to final payment by Client of amounts owing to Muses under the applicable Work Order, Muses agrees that all intellectual property in any deliverable, including all designs, creative content, technical developments, works of authorship, and computer programs, whether or not patentable or copyrightable or protectable as trade secrets or by trademarks (collectively, “Proprietary Rights“) that is made, conceived, first reduced to practice or created by Muses as part of the Services is the sole property of Client. Proprietary Rights do not include any intellectual property in or arising from (a) any information, data, creative content, designs, template, form, project management and software development processes, example code, or applications and tools developed or licensed by Muses that either exist prior to the performance of Services or are not made, conceived, first reduced to practice or created by Muses as part of the Services, and any modifications or improvements to any of the foregoing made by any party at any time or (b) any deliverable resulting from the Services that is identified in the applicable Work Order or otherwise by Muses during performance of the Services as not including Proprietary Rights (intellectual property described in (a) and (b) is the “Muses IP“). Muses agrees to assign (or cause to be assigned) and does hereby assign fully to Client all Proprietary Rights. Upon the written request of the Client, Muses agrees execute such documents as the Client may reasonably request to evidence and effect the assignment of all of Muses’s right, title and interest in and to any Proprietary Rights to the Client. Intellectual property in some of the designs, photography, creative content, technology, works of authorship, computer programs or other materials delivered as a part of the Services is owned by third-parties and unless otherwise agreed by Muses such intellectual property is licensed under terms provided by such third-party. Muses grants to Client, its successors and assigns, a non-exclusive, perpetual, non- transferable paid-up license to modify and use Muses IP for the purposes of exploiting the deliverables made as a part of the Services.
- Representations and Warranties; Disclaimer.
- Mutual. Muses and Client each represent and warrant that it has the full right and authority to enter into each Work Order and perform its obligations thereunder, and that each Work Order is binding and enforceable against it.
- Muses. Muses represents and warrants that the Services performed by Muses will be performed in a professional manner and in accordance with the industry standards and the final deliverables made under any Work Order will substantially comply with the requirements set forth in such Work Order. Client’s sole remedy, and Muses sole obligation, for breach of such warranty is to re-perform and repair and re-deliver any defective Services or deliverables. Muses makes no warranty of any kind, whether express or implied with regard to any services, products, information, content, or software provided by any third-party, whether or not delivered with the Services.
- DISCLAIMER. THE SERVICES ARE IN THE NATURE OF PROFESSIONAL SERVICES. EXCEPT FOR WARRANTIES EXPRESSLY SET FORTH ABOVE, ALL SERVICES TO BE PROVIDED BY MUSES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, AND MUSES AND ITS LICENSORS AND OTHER SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT. MUSES DOES NOT WARRANT THAT THE SERVICES WILL ACHIEVE ANY PARTICULAR RESULT.
- Independent Contractor Relationship. Muses is an independent contractor and nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship with the Client. Muses is not authorized to make any representation, contract or commitment on behalf of the Client unless requested or authorized to do so by Client. Muses will not be entitled to any of the benefits which the Client may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. The manner and means by which Muses chooses to render the Services are in the Muses’s sole discretion and control. In rendering the Services, Muses agrees to provide its own equipment, tools and other materials at Muses’s own expense. Client may make its facilities and equipment available to Muses at the Client’s discretion. Muses is solely responsible for, and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the Services and receipt of fees under each Work Order. No part of Muses’s compensation will be subject to withholding by the Client for the payment of any social security, federal, state or any other employee payroll taxes. Client may report amounts paid to Muses by filing Form 1099-MISC with the Internal Revenue Service as required by law.
- Muses. Muses will indemnify, defend and hold harmless Client and its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, and shareholders from and against any and all costs, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys’ fees (collectively, “Losses”) arising out of or in connection with a claim, suit, action, or proceeding (“Claim”) brought by any third-party alleging that the use of a final deliverable made by Muses as a part of the Services infringes any patent, copyright or trademark, or constitutes a misappropriation of a trade secret right. Excluded from the above obligations are claims to the extent arising from or relating to (a) any third-party products, services, content, or materials that may be incorporated into or used with a deliverable under license, (b) any information, designs, marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to Muses, whether or not incorporated into a deliverable as part of the Services (collectively, “Client Content”), (c) modifications to the deliverables made other than by Muses (where the claim would not have arisen but for such modification), (d) combination, operation, or use of the deliverables with materials, information, content, software or equipment that was not provided by Muses, to the extent that Client’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (e) compliance by Muses with Client’s custom requirements or specifications if and to the extent such compliance with Client’s custom requirements or specifications resulted in the infringement. The rights and remedies granted Client under this section state Muses’s entire liability, and Client’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statutory or common law or otherwise.
- Client. Client will indemnify, defend, and hold harmless Muses, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents from and against any and all Losses arising out of any Claim brought by any third-party arising out of (a) use or distribution of Client Content (including claims that the Client Content violates or infringes any intellectual property right, data protection or privacy right, or applicable law or (b) modifications to Muses deliverables made by Client or its agents.
- Procedure. The indemnified party will (a) promptly notify the indemnifying Party in writing of any Claim for which defense or indemnity is claimed, provided that failure to so notify will not eliminate the indemnifying party’s obligation except to the extent it is prejudiced thereby and (b) allow the indemnifying party to solely control the defense against any Claim and all negotiations for settlement; provided that the indemnifying party will not settle any claim without the indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified party will also provide the indemnifying Party with reasonable cooperation and assistance in defending against such Claim (at the indemnifying party’s cost).
- LIMITATION OF LIABILITY. IN NO EVENT WILL MUSES OR ITS LICENSORS OR OTHER SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO: LOST PROFITS; REVENUE OR SAVINGS; OR THE LOSS OF USE OF ANY DATA, EVEN IF IT HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. MUSES’S AND ITS LICENSORS OR OTHER SUPPLIER’S AGGREGATE CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF COMPENSATION PAID OR PAYABLE TO MUSES PURSUANT TO THE APPLICABLE WORK ORDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- Term and Termination. Unless otherwise set forth in a Work Order, each Work Order may be terminated by either party upon 5 days written notice and upon such termination Client will pay Muses for all work performed until such termination. Sections 10.3 (Disclaimer), 12 (Indemnification), 13 (Limitation of Liability) and 15 (Miscellaneous) will survive the termination or expiration of these Terms or any Work Order.
- Assignment. Neither party may assign, subcontract or otherwise delegate its obligations under any Work Order without the other’s prior written consent.
- Notices. Any notice required or permitted by these Terms will be effective when sent (a) by overnight courier upon written verification of receipt or (b) by email, telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission. Notice will be sent to the addresses set forth below or such other address as either party may specify in writing to the other from time to time.
- Governing Law; WAIVER OF JURY TRIAL. These Terms will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law provisions. Any legal action or proceeding with respect to these Terms will be brought exclusively in the state or federal courts in San Diego County, California. Either party may seek injunctive or other emergency relief in any competent court. THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH OR RELATING TO THE SERVICES, THESE TERMS AND ANY WORK ORDER, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY IN CONNECTION WITH SUCH AGREEMENTS. The prevailing party in any dispute shall be entitled to recover reasonable attorney’s fees.
- Entire Agreement. Each Work Order constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. These Terms will govern all Services undertaken by Muses for the Client.
- Other. Should any provisions these Terms be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of these Term will not be affected or impaired thereby. The waiver by a party of a breach of any provision of these Terms by the other shall not operate or be construed as a waiver of any other or subsequent breach by the other.