Savage Media // Master Services Agreement

MASTER SERVICES AGREEMENT
(v. 09.04.2020)

This MASTER SERVICES AGREEMENT (“MSA”) is made by and between Savage Media LLC (“Savage”) and the person, firm, or entity identified as retaining Savage’s services, either in the signature block below (if signed on paper) or in the electronic acceptance form provided or made available by Savage (in either case, the “Client”) and, each of the foregoing a “Party” and collectively the “Parties”.

This MSA is incorporated into any current or future statement of work specifically referencing this MSA and executed by each Party (more particularly defined below, and each, a “SOW”), except to the extent this MSA may be expressly modified in such SOW. This MSA is effective upon Client’s acceptance hereof, and with respect to each SOW, as of Client’s acceptance thereof (the “Effective Date”).

The Parties have agreed that Savage will provide such professional services as the Parties may agree in one or more current or future SOWs. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the Parties hereby acknowledge, the Parties agree as follows.

CLIENT ACKNOWLEDGES THAT IT HAS READ THIS MSA, UNDERSTANDS IT, AGREES TO BE BOUND BY IT, AND THE PERSON EXECUTING THIS MSA ON CLIENT’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CLIENT TO THIS MSA.

1. DEFINITIONS. As used throughout this MSA:

1.1 “Agreement” means this MSA, together with any SOWs, Plans, Change Orders, or other written plans or specifications mutually signed by the Parties.

1.2 "Background Materials" means all materials, information, concepts, designs, content, utilities, processes, methodologies, algorithms, protocols, routines, methods, software (both object and source code) and tools, the Intellectual Property Rights which are owned by Savage and which are: (a) in existence prior to the date on which they were first used in connection with the Services; and/or (b) materials of general applicability to Savage’s business and/or clients.

1.3 “Change Order” has the meaning set forth in Section 2.3.

1.4 “Client Brand” means the Trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client.

1.5 “Client Materials” means all materials, information, images, photography, writings, music, and any other creative content provided by Client for use in the preparation of and/or incorporation in the Final Works, or as necessary for Savage to perform the Services. This includes claims and representations about Client’s products/services, information, documentation, equipment, software, trademarks, talent or other material, as well as models, minors, and locations supplied by Client.

1.6 “Effective Date” has the meaning set forth in the preamble above.

1.7 “Final Works” means the ﬁnal version(s) of all tangible and intangible materials, information, images, photography, writings, music, and any other creative content described in a SOW, that are developed, licensed, or acquired specifically for Client and provided to Client by Savage under the Agreement, but not including Preliminary Works.

1.8 “Intellectual Property Rights” means all copyrights, patents, database rights, trademarks, design rights, inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration, any goodwill in any trade or service name, trading style or get-up and any other proprietary right, whether registered or not now known or hereinafter created together with all extensions and renewals of such rights.

1.9 “Plan” has the meaning set forth in Section 4.4 below.

1.10 “Preliminary Works” means all tangible and intangible materials that Savage or its Subcontractor creates in providing the Services, which may or may not be shown and or delivered to Client for consideration, but not including the Final Works. For the avoidance of doubt, Preliminary Works include but are not limited to: footage created but not used in any Final Works, outtakes, B-roll, storyboards, operational instructions, sketches, visual presentations, unedited film or video footage, any “assembly edit” or “pre-release edit” of a video production, scripts, pre-production documents, treatments, project files (such as those used by editing software), and components of musical compositions (stems).

1.11 “Project” means any project agreed upon by the Parties from time-to-time pursuant to which Savage is to perform Services, as more fully described in a SOW.

1.12 “SOW” means a mutually agreed written description that details the Services to be rendered by Savage and/or its Subcontractors for Client, and the fees therefor. This MSA is fully incorporated by reference into each SOW. Any mutually executed Plan or Change Order is an amendment to its corresponding SOW. Once executed by both parties, each SOW will be a unique agreement that incorporates the terms of this MSA and stands alone with respect to all other SOWs.

1.13 “Services” means the services to be provided by Savage under the Agreement (including the development and delivery of any Final Works).

1.14 “Third Party Materials” means proprietary materials created or owned by a party other than Savage, including third party licensors and Subcontractors, which may be incorporated into the Final Works. For Illustration purposes only, Third Party Materials may include stock photography, stock video clips, illustration, or music.

1.15 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of the goods or services of Client.

2. ENGAGEMENT AND CHANGE ORDERS.

2.1 Subject to the provisions of this MSA and each applicable SOW, Client hires Savage, and Savage will perform the Services and deliver the Final Works to and for Client. A final Work is considered “delivered” when it is uploaded or posted to a platform or channel profile owned by Client. Savage will only be obliged to supply Services and/or Final Works as expressly set forth in a SOW and will not be obliged to supply any Services and/or Final Works for a Project until both Parties have approved the applicable SOW.

2.2 Savage will have sole discretion in the assignment of its employees to the Project and in the composition of Project staff, including the use of third parties or other service providers as independent contractors in connection with the provision of Services (“Subcontractors”).

2.3 From time-to-time, Client may reasonably request in writing that revisions be made with respect to the Services or Final Works set forth in a SOW.

2.3.1 If such requests materially change the scope of Services or Final Works, or the schedule therefor, or if Savage believes that such requests occasion a change in fees to reflect the additional effort or expense, then Savage may prepare and deliver to Client a writing reflecting Savage’s reasonable determination of the revised Services, Final Works, delivery schedule, and payment schedule, if any, that will apply to the implementation of the revisions (a “Change Order”).

2.3.2 If Client approves the Change Order, then the parties will execute it, and upon execution, the Change Order will operate as an amendment to the then-existing SOW.

2.3.3 Alternatively, the Parties may mutually execute an amended SOW that supersedes the prior SOW.

2.3.4 If Client does not approve the Change Order or proposed revised SOW within 5 business days after receipt, the then-existing SOW will remain in full force and eﬀect, and Savage will have no further obligation with respect to the changed Services, Final Works, or delivery schedule described in the applicable Change Order or revised SOW tendered to Client.

3. FEES AND CHARGES.

3.1 In consideration of the Services to be performed by Savage, Client will pay to Savage the fees and other charges in the amounts and according to the payment schedule set forth in each SOW.

3.2 In addition, Client will reimburse Savage for its actual out-of-pocket expenses (including but not limited to travel expenses) as reasonably incurred in furtherance of its performance hereunder. However, Savage will not incur any reimbursable expense over $100 without Client’s prior written approval, and Savage will provide Client with access to such receipts, ledgers, and other records as may be reasonably appropriate for Client or its accountants to verify the amount and nature of any such expenses. Reimbursable expenses described in this Section 3.2 and Section 3.1 are together referred to hereinafter as “Expenses.”

3.3 Client is responsible for all taxes, duties, and customs fees imposed on or with respect to the Services, excluding taxes based on Savage’s income.

All invoices are payable upon receipt. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Payments will be credited ﬁrst to late payment charges and next to the unpaid balance. Client will be responsible for all collection or legal fees necessitated by lateness or default in payment. Savage reserves the right to withhold delivery, any transfer of ownership, or grant of license of any current work if accounts are not current or overdue invoices are not paid in full.

4. WORK FLOW, PLANS, REVIEWS AND APPROVALS.

4.1 For each SOW, each party will designate a single point of contact within its organization to manage the projects described in such SOW (each, a “Project Leader”). In addition, all personnel of Client who will contribute to the projects described in such SOW will be identified in writing to Savage at the time of commencement of the Services associated with such Work.

4.2 Savage will rely on Client’s Project Leader to act on behalf of and to bind the Client (including written approvals of Plans and Change Orders). Savage’s Project Leader will only receive direct instructions from Client’s Project Leader, but will reasonably work with the Client’s other personnel in connection with performing the Services. Any desired change of Client’s Project Leader will be considered a Change Order pursuant to the terms of Section 2.3 hereof.

4.3 The Project Leaders will meet as necessary to manage the Services to be performed under a SOW. Savage’s Project Leader will provide Client’s Project Leader with regular reports on the status of the Services.

4.4 Depending on the duration and scope of Services, following consultation with Client, Savage may develop a written plan that further refines a SOW’s description of Services (each, the “Plan”). Such a Plan is expected to include such matters as: (for video) the locations, required personnel, schedules, treatment, or creative elements, (for marketing) the various strategies Savage plans to implement, including specific objectives, measurables, deliverables and timelines. Any Plan is a Preliminary Work and Confidential Information of Savage.

4.4.1 The Project Leaders may meet regularly (generally, monthly) to refine and revise the Plan. Savage may also generate monthly reports as to the progress of Services. Where a Project is of limited duration or narrow scope, there will be no need for such a Plan.

4.4.2 As stated in Section 1.12 above, any mutually agreed Plan constitutes an amendment to the corresponding SOW, unless the Parties enter a new SOW to formalize a Plan. If a revised Plan calls for material changes to the Services, Final Works, delivery schedule, or payment schedule, the Parties may enter one or more Change Orders under Section 2.3.

4.5 Where a Plan is used, the following procedure will apply:

4.5.1 Savage will prepare the Plan and send it to Client electronically. Client will review the Plan and, within five (5) business days of receipt, either (a) approve it in writing, or (b) provide written comments and/or corrections suﬃcient to identify the Client’s concerns, objections or corrections to Savage. Savage may request written clariﬁcation of any concern, objection or correction. If Client has not delivered such approval or comments within the applicable time period, the Plan as presented will be deemed automatically accepted by the Client.

4.5.2 Savage will advise of its preferred communication tool, and will instruct Client on its use. For video production, Savage’s current preferred tool is “frame.io”.

4.6 Client is solely responsible for final proofreading of all Project documents and Preliminary Works before their integration into Final Works. Once Client has approved the Preliminary Works, Client assumes sole responsibility for the cost of correcting errors or omissions, such as, typographic errors, incorrect contact information, or misspellings, and any subsequent request for revision of Services already performed during an approved stage of Services will result in a Change Order.

4.7 Client will examine all Final Works upon receipt.

4.7.1 If Client reasonably determines in good faith that the Final Works do not conform to the description in the applicable SOW, if any, Client will promptly notify Savage of its determination in a written notice setting forth a description of the nonconformities. If Client has not delivered such rejection notice within five (5) days of receipt (or such other time period set forth in the SOW), the Final Works will be deemed automatically accepted by Client.

4.7.2 Client may only reject Final Works if and to the extent that they fail to conform materially to the description set forth in the relevant SOW.

4.7.3 After Savage receives a rejection notice, the Parties will meet and confer to agree in good faith upon the schedule by which Savage will perform additional Services to remedy the nonconformities set forth in the rejection notice and the applicable additional charges associated therewith, if any.

4.7.4 When Savage remedies the nonconformities, Savage will redeliver the Final Works to Client and Client will again review the Final Works for acceptance or rejection in accordance with this Section 4.7. This process may not be repeated more than once.

4.7.5 If Client reasonably determines in good faith that Savage will be unable to correct all nonconformities in the Final Works, Client will have the option, by delivering written notice to such effect to Savage, to terminate the SOW only with respect to the nonconforming Final Works; terminate the entire SOW, or accept the nonconforming Final Works. In the event of any termination of all or a portion of any SOW pursuant to this Section 4.7.5, Client will be obligated to pay any undisputed amount set forth in any invoices delivered and any and all related Expenses (including, but not limited to, any upfront costs paid by Savage related to any Subcontractor specified in any applicable SOW) related to such undisputed amounts that had actually been incurred by Savage prior to delivery of the written notice of termination by Client pursuant to this Section 4.7.5.

5. DELAYS AND RESCHEDULING.

5.1 Savage’s ability to meet all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the SOW, and any delays in Client’s performance or Client-driven changes in the Services or Preliminary Works may delay delivery of the Services or Final Works.

5.2 Savage will inform Client as soon as practical of any anticipated delays in the delivery of any item specifically set forth in any SOW and of the actions being taken to assure completion of the such item.

5.3 In the event Client causes a delay, rescheduling, or a re-shooting (whether through its request, action, or inaction), Savage will deliver a Change Order under Section 2.3 to reflect the corresponding change in fees, charges, Expenses, and revised schedule.

6. CLIENT RELEASES. On behalf of all personnel of Client who will contribute to the Projects as well as any other parties participating in such project at the direction of or by the request of Client, Client hereby grants the following rights and permissions to Savage:

6.1 Savage has the absolute right and permission to take, use, reuse, publish, and republish video and/or photographic images (in any media whether electronic, digital, recorded or otherwise) of those recorded or photographed, including any minors, or in which any minor may be included, in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations from time to time, in conjunction with the adult’s or minor’s own or a fictitious name, or reproductions of such videos or photographs, made through any medium and in any and all media now or hereafter known.

6.2 Client specifically consents to the digital compositing or distortion of any such media, including without restriction any changes or alterations as to color, size, shape, perspective, context, foreground or background.

6.3 Client releases, discharges, and agrees to hold harmless and defend Savage, its legal representatives or permitted assigns, and all persons acting under its permission or authority or those for whom Savage is acting, from any liability by virtue of any reason in connection with the making and use of such videos or photographs, including blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced in the taking of said recording or picture or in any subsequent processing thereof, as well as any publication of them, including without limitation any claims for libel or violation of any right of publicity or privacy.

6.4 Client hereby warrants that it has the legal authority to make such an agreement on behalf of any personnel of Client as well as any other parties participating in such Project at the direction of or by the request of Client.

7. CLIENT RESPONSIBILITIES. Unless otherwise provided in the applicable SOW, Client will be solely responsible for performing the following in a reasonable and timely manner:

7.1specifying in the SOW its requirements for the Services and Final Works.

7.2 acquiring and providing to Savage all Client Materials, in a form suitable for reproduction or incorporation into the Preliminary Works and/or Final Works without further preparation;

7.3 obtaining and providing all rights, permissions and licenses necessary for Savage to use the Client Materials and incorporate them into the Preliminary or Final Works;

7.4 obtaining and providing all rights, permissions and licenses necessary for Savage to photograph individuals provided by Client, and to film on premises provided by Client;

7.5 coordinating any decision-making with parties other than Savage;

7.6 appointing a single Project Leader for any approvals of or revisions to the Services or Final Works (including executing any Change Orders or revised SOWs as set forth in Section 2.3), including gathering any feedback from other stakeholders within Client’s organization;

7.7 making such Project Leader (or a designated representative) available on-site during filming or other performance of Services, and vesting such Project Leader with decision-making authority on which Savage may rely;

7.8 providing on-site security, if Savage is performing on Client property;

7.9 directing any third party vendors or suppliers engaged by Client to cooperate with Savage, and to take direction from Savage as necessary;

7.10 obtaining permission and authority to access and film or perform at any third-party location;

7.11 reviewing and proofreading Preliminary Works and/or Final Works as set forth in Sections 4.6 and 4.7;

7.12 complying with the timing requirements set forth in this MSA or any SOW;

7.13 clearing, defending, and protecting any Client trademarks, design marks, trade dress, copyrights or other intellectual property that are incorporated into the Final Works;

7.14 communicating administrative or operational decisions if they affect the design or production of the Preliminary Works and/or Final Works;

7.15 obtaining required permits, and coordinating required public approvals and meetings;

7.16 providing accurate and complete information and materials requested by Savage;

7.17 providing approved naming, nomenclature and securing approvals and correct copy from third parties as may be necessary; and

7.18 all bid solicitation, contract negotiation, performance, and related dealings with third party vendors to Client, other than Savage or its Subcontractors.

8. CONFIDENTIALITY.

8.1 Confidential Information Defined. “Confidential Information” refers to information that one party to this Agreement (“Discloser”) discloses to the other (“Recipient”) where: (a) the Discloser marks the document “Confidential”; (b) the Discloser orally designates information as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within five (5) business days; (c) the information constitutes Preliminary Works; (d) the information includes the financial terms of this Agreement; and (e) the information includes other nonpublic, sensitive information that Recipient should reasonably consider a trade secret or otherwise confidential.

8.2 Notwithstanding the foregoing, Confidential Information does not include information that: (i) is already in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.

8.3 Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this MSA or a SOW hereunder (the “Purpose”). Recipient (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Section 8; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.

8.4 Injunction. Recipient agrees that breach of this Section 8 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser shall be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

8.5 Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8.3 (Nondisclosure) will continue so long as such information remains within the definition of Confidential Information or subject to trade secret protection pursuant to applicable law. Upon termination of this MSA or a SOW hereunder, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

8.6 Retention of Rights. This MSA or a SOW hereunder does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

8.7 Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this MSA or a SOW hereunder:

8.7.1 IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

8.7.2 USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

9. RELATIONSHIP OF THE PARTIES.

9.1 Savage is an independent contractor, not an employee of Client or any company aﬃliated with Client. Savage will provide the Services under the general direction of Client, but Savage will determine, in Savage’s sole discretion, the manner and means by which the Services are accomplished. This MSA does not create a partnership or joint venture and neither Party is authorized to act as an agent of the other Party or bind the other Party except as expressly stated in this MSA. Notwithstanding the foregoing, if a SOW includes posting to Client's social media channels, Client authorizes Savage to make posts on Client's behalf, subject to Client’s right to periodic review and approval.

9.2 This MSA does not create an exclusive relationship between the Parties. Client is free to engage others to perform services of the same or similar nature to those provided by Savage, and Savage is entitled to offer and provide services of the same or similar nature to others, to solicit other clients and otherwise advertise Savage's services.

10. INTELLECTUAL PROPERTY.

10.1 Savage will retain ownership of all Background Materials, Preliminary Works, and Final Works (including, without limitation, all Intellectual Property Rights therein). Savage will retain all Background Materials and all know-how obtained in connection with the Services and nothing will prevent Savage from using any know-how, ideas or concepts acquired before or during the performance of the Services for any purpose.

10.2 Upon receipt of full payment of all fees, Expenses and other charges due and payable under the Agreement, Savage grants to Client a non-exclusive, royalty-free, worldwide license to use such Background Materials and Final Works in Client's ordinary course of business. Client will not (a) use Background Materials independently of the Final Works, (b) distribute, resell, sell or license any Background Materials independently of the Final Works, nor (c) distribute, resell, sell or license any Preliminary or Final Works, or any derivative work or component thereof, to any third party.

10.3 If and to the extent that any of the Final Works comprise or include any Third Party Materials, the applicable third party supplier will retain ownership of all Intellectual Property Rights in such Third Party Materials.

10.4 Client grants to Savage a non-exclusive, royalty-free, worldwide license for the duration of each Project to use, reproduce, create derivative works from, translate, execute, display, upload, store, modify and distribute Client Materials solely to provide the Services and create the Final Works contemplated by the relevant SOW. Any Client Materials provided by Client to Savage are to be used solely to perform the Services.

10.5 Client also hereby grants to Savage a non-exclusive, worldwide, royalty-free license to use the Client Brand, solely for the purpose of performing the Services contemplated by any SOW in accordance with the terms of this MSA.

10.6 Client acknowledges that Savage will not conduct trademark or patent searches as part of the Services for a Project unless Client separately engages Savage to perform such services and payment for such services is specifically indicated in a SOW. Therefore, notwithstanding anything to the contrary, Savage will not be responsible for searching or clearing any Trademarks or aspect of the Client Brand, and will not be responsible for any claims of infringement in connection with the use of the Client Brand. Savage will provide Client with all reasonable assistance, at Client’s expense, in connection with Client’s decision to search, clear or seek registrations for any Trademarks Client may wish to own in connection with the Services.

Client grants Savage the right to reproduce, modify, perform, distribute, publish and display the Client Materials in Savage’s portfolios, promotional materials, and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence, industry awards, marketing, or professional advancement. Savage may describe its role in relation to the Client and any Project and, if applicable, the Services provided to Client, on Savage’s website, social media channels and in other promotional materials, and may include a link to Client’s website.

11. WARRANTIES AND REPRESENTATIONS.

11.1 Mutual. Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this MSA and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this MSA.

11.2 By Client. Client represents, warrants and covenants to Savage that:

11.2.1 Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Materials,

11.2.2 Client Materials do not infringe the rights of any third Party, and use of the Client Materials as well as the Client Brand in connection with the Project does not and will not violate the rights of any third parties,

11.2.3 Client will comply with the terms and conditions of any licensing or other agreements that govern the use of Third Party Materials, and

11.2.4 Client will comply with all laws and regulations as they relate to the Services.

11.3 By Savage. Savage hereby represents, warrants and covenants to Client that:

11.3.1 Savage will provide the Services in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services, and

11.3.2 Except with respect to Third Party Materials and Client Materials, the Final Works will be the original work of Savage and/or its Subcontractors.

11.4 To the extent Client or a third party modifies or otherwise uses the Final Works other than as authorized in this MSA (including but not limited to Section 10), all representations and warranties of Savage will be void as to such changed materials.

11.5 Savage’s ability to perform its obligations may be dependent on Client, Client’s agents, or third-party platforms/providers (e.g. media platforms like Facebook) fulfilling their obligations. In particular, Savage will use commercially reasonable efforts to guard against any loss to Client caused by the failure of media, suppliers or others to perform in accordance with their commitments, but Savage will not be responsible for any such loss or failure on their part. To the extent that Client or such third party platforms, contractors or agents do not fulfill their obligations, then Savage: (a) will be relieved of its obligations to Client to the extent that Savage is prevented from performing the Services and delivering the Final Works in accordance with the Agreement; and (b) will not be liable for any costs, charges or losses sustained by Client arising directly from any such failure to fulfill its obligations under the Agreement.

11.6 EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS MSA, SAVAGE MAKES NO WARRANTIES WHATSOEVER, AND EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

11.7 Savage makes no promise or guarantee about the outcome of any Project, or the success of any marketing efforts. Nothing in this MSA, SOW, Plan or Change Order, nor any statements by Savage or its Subcontractors constitute a promise or guarantee. Any comments about the outcome of any Project are expressions of opinion only.

12. INDEMNIFICATION.

12.1 By Client. Client agrees to defend, indemnify, and hold Savage harmless from any and all damages, liabilities, costs, losses or expenses (including attorneys’ fees and court costs) arising out of any claim, demand, or action by a third Party arising out of or relating to any breach of Client’s responsibilities, representations or warranties under this MSA, except to the extent any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of the gross negligence or intentional misconduct of Savage, and provided that, (a) Savage will promptly notify Client in writing of any claim or suit; (b) Client has sole control of the defense and all related settlement negotiations; and (c) Savage will provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this Section 12.1. Client will reimburse the reasonable out-of-pocket expenses incurred by Savage in providing such assistance.

12.2 By Savage. Savage agrees to defend, indemnify, and hold Client harmless from any and all damages, liabilities, costs, losses or expenses (including attorneys’ fees and court costs) arising out of any claim, demand or action by a third party arising out of any breach of Savage’s responsibilities, representations and warranties made herein (subject to the terms, conditions, limitations, express representations and warranties provided in this MSA), except to the extent any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of the gross negligence or intentional misconduct of Client, and provided that (a) Client promptly notiﬁes Savage in writing of the claim; (b) Savage will have sole control of the defense and all related settlement negotiations; and (c) Client will provide Savage with the assistance, information and authority necessary to perform Savage’s obligations under this Section 12.2. Notwithstanding the foregoing, Savage will have no obligation to defend, indemnify or hold Client harmless for any claim or adverse ﬁnding of fact arising out of or due to Client Materials or Client’s responsibilities as set forth in Section 7.

13. LIMITATION OF LIABILITY. THE SERVICES AND THE FINAL WORKS OF SAVAGE ARE SOLD “AS IS”. IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREUNDER, OF SAVAGE, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“SAVAGE PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE LIMITED TO THE NET PROFIT OF SAVAGE IN CONNECTION WITH THE SOW GIVING RISE TO THE CLAIM. IN NO EVENT WILL SAVAGE BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY SAVAGE, EVEN IF SAVAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

14. TERM AND TERMINATION.

14.1 This MSA will commence upon the Effective Date and will remain effective until the Services are completed and delivered, unless this MSA or any SOW is earlier terminated as provided therein.

14.2 If a SOW specifies an annual subscription for Services, the minimum period of use of the Service shall be twelve (12) months from the Effective Date of the SOW. Client may not terminate the Agreement early (except as set forth in Section 14.3 or 14.4), and all fees paid are nonrefundable.

14.3 This MSA may be terminated immediately without notice by either Party if any Party becomes insolvent, ﬁles a petition in bankruptcy, makes an assignment for the beneﬁt of its creditors.

14.4 Either Party may terminate this MSA or any SOW hereunder if the other Party breaches any of its material responsibilities or obligations under this MSA, if such breach is not remedied within ten (10) days from receipt of written notice of such breach (however, no Party is required to send more than two (2) notifications for the same breach, and may terminate this MSA immediately if the breach is not remedied within ten (10) days of the second notice).

14.5 Savage may terminate the Agreement upon thirty (30) days written notice to Client. In such event, Savage will refund any fees paid for Services extending past the effective date of termination.

14.6 In the event of termination for any reason, Client will pay Savage fees and charges for the pro-rata portion of the Services performed, and will reimburse Savage for all Expenses incurred, through and including the effective date of termination.

14.7 Upon expiration or termination of this MSA: (a) each Party will return or, at the disclosing Party’s request, destroy the Conﬁdential Information of the other Party, and (b) other than as provided herein, all rights and obligations of each Party under this MSA, exclusive of the Services, will survive.

14.8 The following provisions will survive termination or expiration of this MSA: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 6, 7, 8, 10, 11, 12, 13 and (c) any other provision of this MSA that must survive to fulfill its essential purpose.

15. NONSOLICITATION. Each party agrees that during the Term of this Agreement and for a period of 24 months following the termination or expiration of this MSA, it will not make any solicitation to employ the other party's employee or independent contractor without written consent of the other party, to be given or withheld in the other party's sole discretion.

16. GENERAL PROVISIONS.

16.1 Modiﬁcation/Waiver. This MSA may be modiﬁed by the Parties. Any modiﬁcation of this MSA must be in writing (including email with delivery confirmed). Failure by either Party to enforce any right or seek to remedy any breach under this MSA will not be construed as a waiver of such rights nor will a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

16.2 Notices. All notices to be given hereunder will be transmitted in writing, by (a) email with delivery confirmed, (b) national recognized overnight mail (with delivery confirmed), or (c) certiﬁed or registered mail, return receipt requested, and will be sent to the addresses identiﬁed in the SOW, unless notiﬁcation of change of address is given in writing. Notice will be effective upon receipt or in the case of email, upon conﬁrmation of receipt.

16.3 No Assignment. Neither Party may assign, whether in writing or orally, or encumber its rights or obligations under this MSA or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other Party.

16.4 Force Majeure. Savage will not be deemed in breach of this MSA if Savage is unable to complete the Services or any portion thereof by reason of ﬁre, earthquake, labor dispute, act of God or public enemy, death, pandemic, illness or incapacity of Savage or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Savage’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Savage will give notice to Client of its inability to perform or of delay in completing the Services and will propose revisions to the schedule for completion of the Services.

16.5 Governing Law and Dispute Resolution. This MSA will be governed, interpreted, construed, and enforced solely and exclusively in accordance with the laws of the State of Indiana without regard to conflicts of law provisions thereof. The courts located in the State of Indiana will constitute the sole and exclusive forum for the resolution of any and all disputes arising out of or in connection with this MSA. Client consents to the jurisdiction of such courts and irrevocably waives any objections to jurisdiction of such courts, including on grounds of forum non conveniens.

16.6 Severability. Whenever possible, each provision of this MSA will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this MSA is held invalid or unenforceable, the remainder of this MSA will nevertheless remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid or enforceable provision.

16.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and will not affect the scope, meaning, intent or interpretation of the provisions of this MSA nor will such headings otherwise be given any legal effect.

16.8 Integration. This MSA, together with all SOWs, Plans, or Change Orders executed hereunder, comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of such documents. In the case of any inconsistency or conflict between the specific provisions of this MSA and any SOWs, Plans, Change Orders, the following order of priority shall control: (a) Change Order, (b) SOW, (c) MSA, and (d) Plans.

16.9 This MSA resulted from negotiations between the Parties. This MSA will not be construed in favor of or against either Party by reason of authorship. Neither Party has relied upon any such prior or contemporaneous communications. This MSA may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument. This MSA may not be amended except through a written agreement executed by each Party.