Last updated: July 1, 2026
This Master Services Agreement (“Agreement”) is made between Solmos Creative, Inc. (“Company”) and the client identified in the applicable estimate or Statement of Work, or its assigns (“Client”). The general terms and conditions associated with this Agreement (the “Terms and Conditions”), available at https://solmoscreative.com/terms-conditions/, as the same may be amended from time to time, are incorporated herein by reference. Any capitalized term not otherwise defined herein shall have the respective meaning associated with it in the Terms and Conditions.
WHEREAS, Company is in the business of marketing, branding, video production, photography, web development, mobile development, product placement, and related creative services.
WHEREAS, Client desires to engage Company to provide one or more such services, and Company agrees to perform such services, on the terms and conditions set forth herein.
WHEREAS, Company and Client agree that this Agreement, as may be amended from time to time, shall apply to all such services, whether current or future.
THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Company agrees to perform services (the “Services”) for Client as described in one or more Statements of Work delivered by Company and accepted by Client, as the same may from time to time be amended. Company may update each Statement of Work on a regular basis to reflect (a) Services rendered, (b) modifications to the Services, goals, or milestones accepted by the parties, and (c) any modifications to the budget. Client shall provide Company with any objections to a revised Statement of Work within five (5) business days of Company’s provision of the same, and will otherwise be deemed to have accepted the revised Statement of Work.
1.1 Order of Precedence. The scope of Services, deliverables, pricing, and timing set forth in an applicable Statement of Work shall control over any conflicting general description in this Agreement. The legal terms and conditions of this Agreement and the Terms and Conditions shall control over any conflicting term in a Statement of Work, unless the Statement of Work expressly references the specific section of this Agreement and states that it is intended to override it.
1.2 Timing. Any timing for Deliverables (as defined in the Terms and Conditions) provided in a Statement of Work is provided for illustration purposes and is subject to change depending on the facts and circumstances relating to the Services, including delays caused by Client, third parties, or matters outside Company’s reasonable control.
Client shall assist Company in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in this Section 2 and in the applicable Statement of Work at its own expense. Client shall make available to Company a designated representative identified in the applicable estimate or Statement of Work (“Client’s Representative”), who shall be authorized to make binding decisions for Client regarding the obligations which are the subject of this Agreement.
2.1 Client Materials and Approvals. Client shall provide, in a timely manner, all content, materials, information, access, feedback, and approvals reasonably required for Company to perform the Services. Company is not responsible for delays, additional costs, or deficiencies in the Deliverables caused by Client’s failure to do so.
2.2 Rights, Releases, and Permissions. Where the Services or Deliverables involve, as contemplated by the applicable Statement of Work, the appearance, likeness, voice, name, or performance of any individual, or the use of any location, property, trademark, artwork, music, footage, or other third-party right or content, Client is solely responsible for obtaining, before the relevant Services are performed, all releases, consents, licenses, and permissions required for such use. Client represents that it has secured all such rights and shall provide copies to Company upon request. Company relies entirely on Client for the foregoing.
2.3 Regulatory and Compliance Review. Where Client operates in a regulated industry (including, without limitation, medical, medical device, pharmaceutical, healthcare, financial, or legal services), Client is solely responsible for all regulatory, legal, medical, and compliance review and approval of scripts, claims, content, and Deliverables (including any medical, legal, and regulatory (MLR), FDA, HIPAA, or similar review implicated by the applicable Statement of Work). Company is not responsible for the accuracy, substantiation, or regulatory compliance of any content or claims supplied or approved by Client, and Client’s written approval of any script, draft, or deliverable constitutes Client’s confirmation of such compliance.
3.1 “Client’s Business” shall mean the business of Client as described in the applicable estimate or Statement of Work.
3.2 The ownership, assignment, and licensing of Deliverables and all related elements are governed by Section 2 of the Terms and Conditions.
4.1 Client shall pay Company on a monthly basis in advance, unless an agreed schedule of payment has been determined in the applicable Statement of Work. Company shall not be required to provide Services relating to any time or projects not previously paid by Client, and reserves the right to suspend Services during any period in which Client has failed to pay for the work allocated to such Services. Company may unilaterally revise any Statement of Work as it relates to Services remaining to be rendered, and specific lead times for the same, to the extent that Client has failed to pay for the applicable work.
4.2 Expenses. On a monthly basis in arrears, Client shall reimburse Company for all materials and reasonable out-of-pocket fees and expenses incurred in connection with the performance of its obligations under this Agreement (“Expenses”). Company shall obtain Client’s prior written approval for any single Expense anticipated to exceed $1,000, or aggregated Expenses anticipated to exceed $5,000, except that any not-to-exceed amount approved in a Statement of Work shall be deemed pre-approved.
4.3 Late Payment. In the event that Company provides Services despite Client’s failure to pay in advance pursuant to Section 4.1, or Client fails to pay for Expenses within thirty (30) days of invoice, such late payments shall be subject to a late payment fee equal to the lesser of 1.5% per month and the maximum amount permitted by applicable law.
4.4 Deposits and Reservation Fees. Unless otherwise stated in a Statement of Work, Company may require a deposit or reservation fee to commence work or to reserve dates, personnel, or third-party bookings. Deposits are earned upon receipt and are non-refundable, and shall be credited against the fees for the applicable Statement of Work.
4.5 Scheduling, Rescheduling, and Cancellation. For Services tied to scheduled dates, personnel, travel, or third-party bookings as described in the applicable Statement of Work, the applicable dates are confirmed upon Company’s receipt of any required deposit and Client’s approval of any related estimate. One (1) reschedule is permitted at no additional Company charge with at least ten (10) business days’ written notice. Rescheduling or cancellation by Client within ten (10) business days of a scheduled date is subject to (a) a rescheduling or cancellation fee equal to twenty-five percent (25%) of the fees for the affected Statement of Work, and (b) all non-refundable travel, lodging, vendor, equipment, and other third-party costs already committed by Company on Client’s behalf, all of which Client shall reimburse regardless of cancellation or rescheduling.
4.6 Revisions and Additional Work. Each Deliverable includes the number of revision rounds stated in the applicable Statement of Work. Additional revision rounds, changes requested after a Deliverable has been accepted or approved, and modifications arising from regulatory, medical, or legal review beyond the included rounds, are billed at Company’s then-current hourly rate and may extend delivery timelines. Any request that materially expands the agreed scope requires a written change order or revised Statement of Work.
4.7 Costs of Collection. Client shall reimburse Company for all reasonable costs of collecting past-due amounts, including reasonable attorneys’ fees, court costs, and collection-agency fees. In any action or proceeding to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
5.1 Continuation. Unless earlier terminated pursuant to this Section 5, the retainer or ongoing efforts of this Agreement shall continue for a period of one (1) year, and shall automatically renew for additional one (1) year periods unless either party grants notice to the other of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
5.2 Termination for Convenience. Subject to Section 5.4, either party may terminate this Agreement or any Statement of Work upon sixty (60) days written notice to the other party.
5.3 Breach. If a party fails to comply with any material term of this Agreement, the non-breaching party shall notify the other party of such failure, and if the breaching party fails to cure such breach within five (5) business days, the non-breaching party may immediately terminate this Agreement or any Statement of Work. Notwithstanding the foregoing, Company shall not be obligated to provide Client with notice and an opportunity to cure a payment default more than once in any twelve (12) month period, and in the event of multiple payment defaults in any twelve (12) month period, may immediately terminate this Agreement or any Statement of Work.
5.4 Effect of Termination.
5.4.1 Upon termination of this Agreement for any reason: (a) Client shall immediately pay to Company all amounts owed pursuant to Section 4 for any unpaid work relating to Services performed and Expenses incurred prior to the date of termination, together with any non-refundable deposits and any committed third-party costs pursuant to Sections 4.4 and 4.5; (b) each party shall immediately cease all use of, and shall return to the other party within five (5) business days, all Confidential Information and materials of such other party and all copies, portions, and abstracts thereof in its possession or control, other than any materials for which Client has paid or agrees to pay. Company shall deliver to Client only such portions of the Deliverables that are complete and paid for.
5.4.2 Upon early termination of this Agreement or any Statement of Work (i) by Client pursuant to Section 5.2 or (ii) by Company pursuant to Section 5.3, in addition to any further damages at law or in equity and payment for any work relating to Services rendered, Client shall immediately pay to Company a termination fee equal to ten percent (10%) of the fees relating to the remaining, unutilized, and unpaid work designated in the applicable Statement of Work (the “Termination Fee”). Client acknowledges that damages to Company for early termination are difficult, if not impossible, to ascertain, and that the Termination Fee shall be deemed liquidated damages for such early termination and not a penalty.
6.1 Notices. All notices required shall be in writing and shall be effective on the date of delivery to the parties at the addresses previously indicated, to the attention of the signers of this Agreement, or to such other address as designated by the parties in writing. Notices shall be sent by registered U.S. mail, by a mutually recognized overnight delivery service, or by email to the address designated by the receiving party, with electronic confirmation of delivery.
6.2 Assignment. Client may not assign its rights or obligations under this Agreement without the prior written consent of Company. Company may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets. This Agreement is binding upon the parties and their respective heirs, representatives, successors, and permitted assigns.
6.3 Severability. Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision shall in no way affect the validity or enforceability of any other provision. Any invalid or unenforceable provision shall be deemed severed, and the balance of this Agreement shall be construed and enforced as if it did not contain the particular provision held to be invalid or unenforceable, provided that a court may modify such provision to the minimum extent necessary to make it enforceable.
6.4 Waiver. The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
6.5 Force Majeure. Neither party shall be responsible for any failure to perform, or delay in performing, any of its obligations under this Agreement, other than payment obligations, where and to the extent that such failure or delay results from causes outside the reasonable control of such party. Such causes shall include, without limitation, delays caused by the other party, acts of God or of the public enemy, acts of government in its sovereign or contractual capacity, fires, floods, epidemics, pandemics, quarantine restrictions, travel disruptions, freight embargoes, strikes, civil commotion, or the like.
6.6 Headings. Section headings are for the convenience of the parties and shall not be construed as part of this Agreement.
6.7 Disputes. Any controversy or claim between the parties shall be settled first by negotiation between the Client’s Representative and Company’s project manager. In the event the parties are unable to resolve the dispute in a reasonable period of time, the parties agree to elevate the dispute to their respective Presidents, Managers, or equivalent officers. If, after a reasonable period of time, the parties are still unable to resolve the dispute, the parties agree to resolve the dispute in accordance with Section 6.8.
6.8 Governing Law and Arbitration. This Agreement shall in all events and for all purposes be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to any choice-of-law principle that would dictate the application of the laws of another jurisdiction. Any claim or dispute arising from or related to this Agreement that is not resolved under Section 6.7 shall be settled by confidential, legally binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, before a single arbitrator, seated in Bristol County, Massachusetts. Judgment upon the arbitration award may be entered in any court having jurisdiction. The parties understand that these methods shall be the sole remedy for any controversy or claim arising out of this Agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision. Notwithstanding the foregoing, either party may seek temporary or preliminary injunctive or other equitable relief from a court of competent jurisdiction located in Massachusetts to protect its intellectual property or Confidential Information without first submitting the matter to negotiation or arbitration, and each party consents to the exclusive jurisdiction and venue of the state and federal courts located in Massachusetts for such purposes. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, ANY RELATED AGREEMENTS OR DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
6.9 Limitation of Actions. Except for actions by Company to collect amounts owed, any claim or cause of action arising out of or related to this Agreement or the Services must be commenced within one (1) year after the cause of action accrues, or it shall be permanently barred, to the maximum extent permitted by applicable law.
6.10 Survival. The provisions of Sections 4, 5, and 6 of this Agreement and Sections 2, 3, and 4 of the Terms and Conditions, together with any other provisions which by their terms or import are intended to survive, shall survive the expiration or termination of this Agreement.
6.11 Entire Agreement. This Agreement, together with the Terms and Conditions and the most recent Statement of Work, supersedes all prior oral or written representations, communications, or agreements between the parties, and, together with any appendices, constitutes the final and entire understanding of the parties regarding the subject matter of this Agreement. Neither party has relied on any such prior oral or written representations, communications, or agreements.
6.12 Execution. This Agreement may be executed (including by facsimile, electronic signature, or Internet-based service) by one or more of the parties on any number of separate counterparts. All such counterparts taken together shall be deemed to constitute one and the same instrument, and each electronic or facsimile signature shall have the same force and effect as an original. The parties agree that electronic acceptance of an estimate or Statement of Work referencing this Agreement constitutes execution of this Agreement.
These General Terms and Conditions are the terms and conditions associated with the Master Services Agreement between Solmos Creative, Inc. (“Company”) and the Client named therein (the “MSA”), and are hereby incorporated by reference in the MSA. Capitalized terms not otherwise defined herein shall have the meanings associated with them in the MSA.
Client understands that Company shall rely upon Client’s Representative as having the authority specified in Section 2 of the MSA, and that all official communications from Company to Client shall be addressed to Client’s Representative.
2.1 Independent Contractor. For all purposes hereof and in the performance of its obligations under this Agreement, Company is and shall remain an independent contractor, and nothing in this Agreement or in a Statement of Work shall be deemed or construed to create an employer/employee, joint venture, or partnership relationship between Company and Client. Nothing herein shall be deemed to create an employment relationship between Client and any employee, agent, or independent contractor of Company. Neither party shall have any authority to incur any obligation on behalf of the other party or to make any promise, representation, or contract of any nature on behalf of the other party.
2.2 Company’s Personnel. Unless otherwise stated in the applicable Statement of Work, Company shall have sole discretion over the identity of its personnel used to provide the Services, provided that Company shall ensure that such personnel are suitably qualified and experienced. Where specific personnel are specified in an applicable Statement of Work, Company shall use reasonable efforts to provide the Services through those personnel, provided that Company shall be entitled to replace such personnel with personnel of equivalent qualification and experience on no less than five (5) business days’ notice to Client.
2.3 Non-Exclusivity. Without authorizing Company or its personnel to engage in any conduct that would result in a breach of this Agreement, Client recognizes that Company’s personnel may perform similar services from time to time for other entities or individuals, which may even be in the same or similar business as Client, and this Agreement shall not prevent Company from using such personnel for the performance of such similar services for such other entities or individuals. Company recognizes that Client may engage other agencies to perform similar services from time to time, and this Agreement shall not prevent Client from using such agencies.
2.4 Intellectual Property Definitions.
2.4.1 “Client Elements” shall mean all elements of any Deliverables created for Client other than Retained Elements, Source Materials, and Third Party Elements, and all modifications and portions thereof, together with all proprietary rights relating thereto, including, without limitation, all copyrights and patent and trade secret rights.
2.4.2 “Deliverables” shall mean the deliverables resulting from the Services as set forth in the applicable Statement of Work, as may be amended from time to time.
2.4.3 “Retained Elements” shall mean all elements of any Deliverables to the extent the same are not specific to the business of Client or to the specification for the Deliverables set forth in the Statement of Work, including, without limitation, organizational elements of a design, templates, tools, know-how, and methods, and all modifications and portions thereof, together with all proprietary rights relating thereto.
2.4.4 “Third Party Elements” shall mean all elements created by third parties and incorporated in the Deliverables at the request of Client. By way of example, fonts, stock media, and licensed music used for a Client shall be deemed Third Party Elements.
2.4.5 “Source Materials” shall mean all raw footage, camera original media, project files, working files, layered design files, outtakes, and other production or working materials generated in the course of the Services. Source Materials are retained by Company and are not Deliverables unless expressly identified as Deliverables in the applicable Statement of Work.
2.5 Ownership. Until Company receives full payment for the Services from Client, and except as otherwise set forth herein, the entire right, title, and interest in and to the applicable Deliverables, including all modifications and portions thereof and all proprietary rights relating thereto, including all intellectual property rights such as copyrights, trademarks, and patent and trade secret rights, are the exclusive property of Company.
2.5.1 Works-for-Hire. The Client Elements shall be deemed works-for-hire and shall be the exclusive property of Client upon Company’s receipt of full payment for the Services. Company expressly agrees to assign to Client the copyright in any Client Elements that do not meet the requirements of a work-for-hire under the U.S. Copyright Act, as soon as such work is fixed in a tangible form or medium. Additionally, independent of the U.S. Copyright Act, Company hereby assigns to Client, to the fullest extent possible under the law, all of its right, title, and interest, if any, in and to the Client Elements. Company further agrees to execute and deliver such instruments and to take such actions as may be reasonably required or requested by Client to confirm or defend Client’s sole and exclusive ownership of the Client Elements.
2.5.2 License. Upon Company’s receipt of full payment for the Services, Company shall grant to Client a perpetual, irrevocable, royalty-free, limited, non-exclusive, non-transferable, worldwide license, without the right to grant sub-licenses (except that Client may, upon receipt of written consent from Company, grant sub-licenses to its affiliates or subsidiaries), to use the Retained Elements as required to use the Deliverables in furtherance of Client’s Business. For clarity, Client shall be solely responsible for procuring and maintaining appropriate licenses to use Third Party Elements, including the payment of any fees or expenses associated therewith.
2.5.3 Source Materials and Archival. Source Materials remain the property of Company and are not delivered to Client unless expressly identified as Deliverables in the applicable Statement of Work, in which case they are delivered “as is.” Company has no obligation to store, archive, or back up any materials, including Source Materials or Deliverables, after final delivery, and may delete them ninety (90) days after delivery. Client is solely responsible for maintaining its own copies of all Deliverables.
3.1 Warranty of Authority; No Conflict. Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit, or be contrary to any other agreement.
3.2 Warranty of Services.
3.2.1 Warranty. Company warrants that all Services will be performed in a professional manner using qualified professional personnel and that the Deliverables will comply with the specifications set forth in the applicable Statement of Work. Where the Deliverables include a website or other digital product, Company warrants that they will be compatible with the current versions of major modern browsers (including Chrome, Firefox, Safari, and Edge) and reasonable modern mobile devices, but they may not be compatible with other or legacy browsers, devices, or technologies.
3.2.2 No Infringement. Each party represents and warrants to the other that its respective disclosure and delivery of any information, documents, software, and other materials, and use thereof as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, trademark, known patent, or trade secret right.
3.2.3 Disclaimer of Warranties. THE DELIVERABLES ARE PROVIDED “AS-IS” AND, EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
3.2.4 Client Content, Releases, and Data. Client is solely responsible for the accuracy, legality, and clearance of all content, claims, materials, and instructions it supplies or approves, and for obtaining all releases, consents, licenses, and regulatory approvals required in connection therewith as described in Sections 2.2 and 2.3 of the MSA. In the event that Client uses, stores, manages, collects, or otherwise has access to personally identifiable information on a website or platform hosted by Company, or incorporates personally identifiable information in or with the Deliverables, Client shall use such information only in compliance with all applicable laws and administrative rulings and in accordance with Company’s privacy policies and Client’s own posted privacy policies.
3.2.5 Limitation of Liability. THE PARTIES AGREE THAT NEITHER PARTY’S LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WILL EXCEED THE FEES PAID OR TO BE PAID BY CLIENT PURSUANT TO THE APPLICABLE STATEMENT OF WORK UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST DATA, LOST PROFITS OR REVENUE, OR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY. This limitation of liability represents an allocation of risk between Company and Client, which allocation is reflected in the price of the Services.
3.3 Infringement Remedies. In the event that Client is informed by a third party that the Deliverables provided by Company (except to the extent the Deliverables are comprised of intellectual property owned or licensed by Client or other elements specifically requested by Client (collectively, “Client Content”)) infringe upon that third party’s intellectual property rights, including copyright and trademark rights, Client will immediately notify Company. Company may, in its sole discretion, then prohibit Client from using the Deliverables on a go-forward basis by providing written notice, provided that Company shall provide additional Services and new Deliverables of the same or equivalent functionality, as described on an updated Statement of Work, at no additional cost to Client. Alternatively, Company may, in its sole discretion, procure for Client the right to continue using the Deliverables. If Client continues to use the Deliverables despite Company’s notification, Client shall be responsible for any damages (including reasonable attorneys’ fees) related to the use of the Deliverables beyond the notification date.
Company shall have no obligations, responsibilities, or liabilities hereunder if: (i) the infringement is caused by combining the Deliverables with any other product, service, content, or subject matter that is not part of the Deliverables in the form provided by Company to Client; (ii) the infringement results from any use of the Deliverables by Client in a manner not anticipated under this Agreement; (iii) the infringement results from any unauthorized alteration of the Deliverables by Client or its subcontractors or agents; or (iv) the infringement results from use of other than the delivered version of the Deliverables provided by Company to Client (each, a “Client Infringement”). This Section 3.3, together with any indemnification obligations contained in Sections 3.4 and 3.5, states Company’s entire obligation to Client and Client’s sole remedy with respect to any claim of infringement.
3.4 Indemnification by Company. Company shall indemnify and hold harmless Client, Client’s parent company, subsidiaries, affiliates, directors, owners, shareholders, members, officers, employees, consultants, and agents (individually and collectively, a “Client Indemnified Party”) from and against any and all claims, actions, proceedings, losses, liabilities, judgments, penalties, fines, damages, costs, and expenses, joint or several, including reasonable counsel fees, disbursements, court costs, and costs of settlement (individually and collectively, “Claims”), to the extent the Claims arise out of or result from any of the following: (i) the grossly negligent acts, acts of omission, or intentional acts of Company or its employees, subcontractors, or agents; (ii) any breach of the provisions of this Agreement by Company; (iii) any violation of federal, state, or local law or regulation applicable to Company; or (iv) any allegation that the intellectual property (except for Client Content or to the extent such infringement is caused by a Client Infringement) used in the Deliverables infringes any patent, trademark, or copyright in the United States. Client will notify Company of any Claim for which indemnity is required in the reasonable opinion of Client and will cooperate reasonably with Company at Company’s expense. The law firm Company chooses to defend Client must be experienced in defending similar Claims and will be subject to Client’s approval, which will not be unreasonably withheld. Company may not settle any lawsuit or matter relating to the culpability or liability of Client without the prior written consent of Client. Client will have the right to participate in any defense of a Claim and to be represented by counsel of its own choosing at its own expense.
3.5 Indemnification by Client. Client shall indemnify, defend, and hold harmless Company and Company’s parent company, subsidiaries, affiliates, directors, owners, shareholders, members, officers, employees, consultants, and agents (“Company Indemnified Party”) from and against all Claims that may at any time be incurred by a Company Indemnified Party, including, without limitation, libel, violation of right of privacy or publicity, copyright infringement, trademark infringement, or other infringement of any third-party right, fraud, false advertising, misrepresentation, product liability, or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with Client’s conduct, acts, or omissions; any alleged or proven breach by Client of any term, condition, agreement, representation, or warranty herein; any allegation that the Client Content infringes any patent, trademark, or copyright in the United States; any Client Infringement; any missing, insufficient, or invalid release, consent, license, or regulatory approval that Client is responsible for under Sections 2.2 and 2.3 of the MSA; the content and claims supplied or approved by Client; and any improper use or mishandling of personally identifiable information, in each case excluding any Claim that arises solely from the acts or omissions of a Company Indemnified Party. Company will notify Client of any Claim for which indemnity is required in the reasonable opinion of Company and will cooperate reasonably with Client at Client’s expense. The law firm Client chooses to defend Company must be experienced in defending similar Claims and will be subject to Company’s approval, which will not be unreasonably withheld. Client may not settle any lawsuit or matter relating to the culpability or liability of Company without the prior written consent of Company. Company will have the right to participate in any defense of a Claim and to be represented by counsel of its own choosing at its own expense. Without limiting any rights or remedies hereunder or under applicable law, Company shall have the right to set off any liability of Client to Company with respect to a Claim against any amounts held on deposit with Company by Client.
4.1 Confidential Information. In connection with this Agreement, each party (as “Recipient”) may disclose to, or the other party (as “Discloser”) may learn of or have access to, certain confidential and proprietary information owned by the Discloser or its affiliates, business partners, or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to the Discloser or any of its existing or contemplated business activities, technology, developments, software, methods, pricing, trade secrets, and clients. Confidential Information also includes the terms of this Agreement and the Services.
4.2 Exclusions. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) becomes publicly available or enters the public domain through no fault of the Recipient; (iii) is rightfully communicated to the Recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Recipient’s possession free of any confidentiality obligations with respect thereto; (v) is independently developed by the Recipient without use of any Confidential Information; or (vi) is approved for release or disclosure by the Discloser in writing without restriction.
4.3 Limitation of Disclosures. During the term of the engagement and for a period of five (5) years thereafter, each Recipient shall maintain the Discloser’s Confidential Information in strict confidence and shall not disclose, publish, or copy any part of the Confidential Information. The Recipient shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement and not for its own benefit or the benefit of any third party. The Recipient shall take reasonable precautions in handling the Confidential Information and will limit disclosures on a strict need-to-know basis. The Recipient may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Recipient gives reasonable prior notice to the Discloser to contest such order or requirement, unless prior notice is prohibited by law. Upon the termination or expiration of this Agreement, the Recipient shall return to the Discloser or certify the destruction of all Confidential Information, provided that the Recipient may retain an archival copy as required by law or its record-retention policy.
4.4 Non-Solicitation and Non-Circumvention. During the term of this Agreement and for a period of one (1) year thereafter, each party agrees not to, directly or indirectly, solicit or induce, or attempt to persuade, any employee, independent contractor, vendor, supplier, or outsourced third party of the other party to terminate an employment, contractual, or other relationship with the other party. During the same period, and subject to Section 2.3, each party further agrees not to circumvent an existing relationship of the other party by contacting any person or entity first disclosed or introduced by the other party in the course of the Services for the purpose of taking advantage of a business opportunity in a manner that deprives the other party of the benefit of that relationship. Nothing in this Section restricts either party from engaging in its ordinary business or from working with any person or entity with whom it had a relationship independent of this Agreement.
4.5 Publicity. Notwithstanding anything to the contrary in this Agreement or applicable Statements of Work, Company shall be permitted to disclose in summary form the nature of the work performed for Client and to display completed Deliverables in its portfolio and promotional materials; provided that Company shall not disclose the proprietary business processes of Client or otherwise breach any other term of this Agreement. Publicity represents value for Company, which value is reflected in the price of the Services.
4.6 Reference. Notwithstanding anything to the contrary in this Agreement or applicable Statements of Work, each party is entitled to reference the other party and describe work completed under this Agreement and any related Statements of Work in summary and general form, without revealing any of the other party’s Confidential Information.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his or her hand and seal the day indicated.
