SERVICES AGREEMENT MASTER TERMS AND CONDITIONS
1. SCOPE OF SERVICES
Magna Technology, LLC (“Magna”) agrees to provide Client, as defined in the Services Agreement to which these Master Terms and Conditions are incorporated by reference thereto and made a part thereof (the “Agreement”), with the services as described in the Agreement (the “Services”). Client agrees that Magna shall only be responsible for providing the Services and shall not be responsible for providing any additional services or completing any tasks not specifically set forth in the Agreement. Any changes to the Services must be documented in a written addendum to the Agreement signed by both Client and Magna in order to be considered binding upon the parties.
To the extent that the Services involve development, hosting, or maintenance of Client’s website or websites (the “Website”), Client shall arrange for Magna to have unlimited, unrestricted access to its Website wherever it may be housed as required by Magna to perform the Services and shall furnish Magna with active username and password combinations and all appropriate permissions.
To the extent that the Services include maintenance of the Website, Client agrees that for the duration of this Agreement, Magna will be the sole provider of maintenance services for the Website, and no other party aside from Client will have access to or rights to change the Website. If a party other than Magna makes changes to the Website that result in errors, it shall constitute a breach of this Agreement. Unless otherwise agreed in writing by the parties, remediation of such errors shall not be considered part of the Services and shall be charged to Client at Magna’s then-current hourly labor rate.
Client specifically understands and agrees that the Services do not include, and Magna is not responsible for, compliance of the Website with any standards or pending or promulgated regulations governing accessibility under the Americans with Disabilities Act (“ADA”) or corresponding state laws. The Services may include certain tasks, services, or changes designed to meet particular accessibility goals or standards, but Magna is at no time responsible for ensuring compliance of the Website with the ADA or corresponding state laws.
2. CLIENT COMMUNICATIONS
The designated contact person listed on the Agreement (the “Designated Contact Person”) shall be the sole person through whom Client shall communicate with Magna and Magna shall communicate with Client. Magna shall have no obligation to follow instructions provided by any person other than the Designated Contact Person, provided, however, in such a situation, that Magna will make reasonable efforts to confirm with the Designated Contact Person that the instructions are duly authorized. The Designated Contact Person shall respond to all inquiries from Magna within three (3) business days, and failure to do so shall give Magna grounds to suspend its performance under the Agreement until contact is made. In such case, Magna shall receive an extension of the deadline for Magna’s own performance corresponding to the time during which the Designated Contact Person has failed to respond. The Designated Contact Person may not be changed without notification by Client to Magna in writing. Magna shall not be held responsible for changes to the Designated Contact Person made by Client without notice to Magna.
3. CLIENT CONTENT AND PROPRIETARY RIGHTS
The Website itself and any and all materials provided by Client for incorporation into the Website, including but not limited to any images, photographs, illustrations, graphics, audio or video clips, or text, and any content designed by Magna specifically and exclusively for incorporation into Client’s Website shall be “Client Content.” Client shall promptly deliver to Magna in such format as shall be specified by Magna and within the time frame requested by Magna, all Client Content necessary for Magna to provide the Services. Client remains responsible for the contents of the Website and other Client Content and the consequences thereof.
As between Client and Magna, Client Content including, without limitation, any and all copyrights, trademarks, patents and trade secrets in the Client Content shall remain the sole and exclusive property of Client. Client hereby grants to Magna a non-exclusive, worldwide, royalty-free license for the duration of the term of this Agreement to edit, modify, adapt, translate, exhibit, display, publish, transmit, reproduce, perform, distribute, prepare derivative works from, and otherwise use the Client Content as necessary for the sole purpose of rendering the Services to Client under this Agreement. This license shall automatically cease immediately upon the termination of this Agreement, and Magna shall, at that time and without any further action necessary by either party, be deemed to have surrendered any interests in the Client Content. Magna does not and shall not assert any claims of ownership or control of the Client Content.
Subject only to Client’s ownership in the Client Content, all materials, including any computer software, script, programming code, data, information developed, provided or used by Magna, including stock photography purchased by Magna for integration into the Website, and any and all copyrights, trademarks, patents and trade secrets, know-how, methodologies and processes utilized by, or related to, Magna or Magna’s products and services, and any other proprietary rights inherent therein or appurtenant thereto (“Magna Materials”) shall remain the sole and exclusive property of Magna. To the extent, if any, that ownership of the Magna Materials does not automatically vest exclusively with Magna, Client hereby transfers and assigns to Magna all rights, title and interest in the Magna Materials. Magna hereby grants to Client a non-exclusive, non-transferable license to use those Magna Materials that are incorporated into the Website during the term of this Agreement. Magna reserves for itself all rights in and to the Magna Material not expressly granted to Client herein.
Client acknowledges and agrees that Magna is in the business of developing and designing web sites and Magna shall have the right to provide to third parties services that are the same or similar to the Services provided to Client under this Agreement, and Magna shall use Magna Materials for, among other things, future exploitation to provide such services to others.
4. WEBSITE HOSTING
To the extent that the Services include hosting of the Website or other materials on the computer system owned and operated by Client and/or its designated third-party contractor, through which the Website may be viewed (the “Host Server”), this Section Four applies.
Magna may, at its sole option, retain a third-party contractor to furnish the Host Server necessary for Magna to perform the Services. Magna advises that it does not have physical custody or control of a Host Server furnished by a third-party contractor, and Magna shall have no liability to Client for damage to, the destruction of, unavailability of, or improper accessing of the Host Server.
Unless a different limit is specified in the description of the Services, the maximum aggregate number of “visits” to the Website in any calendar month permitted as part of the Services shall be 50,000. For the purpose of this calculation, each unique IP address accessing the Website during a 24-hour period shall be considered to constitute one “visit.” Should this limit be exceeded during any calendar month, Magna shall charge Client $2.00 for every 1,000 “visits,” or portion thereof, in excess of the applicable limit.
Client agrees not to interfere with the operation of the Host Server or any other Magna system. Client further agrees not to interfere with the proper operation of other systems accessible through the internet, including any attempt at unauthorized access. Client agrees to adhere to system policies as set forth by Magna, including restrictions on services available with each service type, restrictions on certain features, and all other policies. All commercial messages sent by Client through the Host Server or from another server advertising a site hosted on the Host Server shall comply with the federal CAN-SPAM Act and all other applicable federal and state laws.
Client is responsible for maintaining a copy of its most recent website files as backup on a remote system. Magna is not responsible for any lost files, information, or data, including but not limited to such losses that are a direct result of Magna’s negligence.
Magna has the right to electronically monitor any Client Content housed on the Host Server from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its other clients. Magna reserves the right to remove or to refuse to post any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement or applicable law. Magna reserves the right to monitor any and all communications through or with the Host Server. Client agrees that the Host Server or any other facilities provided by Magna are not considered a “secure communications medium” for the purposes of the Electronic Communications Privacy Act, and that no expectation of privacy is afforded.
5. SUPERVISORY AUTHORITY
Magna shall have the right to determine the method, details, and means of performing the Services. Client may exercise general power of supervision and control over the results of work performed by Magna to assure satisfactory performance, including the right to inspect materials prepared by Magna, the right to make suggestions or recommendations as to the details of the materials, and the right to propose modifications to the materials. Magna shall report directly to the Designated Contact Person.
To the extent that Magna shall be directed to interface with third parties as a representative of Client as part of the Services, Client shall clearly delineate the scope of this representation and any limitations thereon. Magna shall not be liable to Client for exceeding the scope of any representative authority where Client fails to clearly delineate this scope or any limitations. Client shall ensure that any third-parties with whom Magna shall deal as a representative of Client are made aware of Magna’s representative capacity.
Each party agrees that in order to perform under this Agreement, it may be necessary or desirable to disclose to the other information that is confidential or proprietary, including without limitation software, technical processes, formulas, codes, product designs, sales, cost and other unpublished financial information, product and business plans, customer lists, advertising revenues and relationships, and marketing data (“Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that (a) is, as of the time of the disclosure, in the public domain through a source not obligated under this confidentiality provision; or (b) as shown by written records was lawfully in the receiving party’s possession prior to the date of this Agreement; or (c) as shown by written records or other reliable evidence was independently developed by the receiving party; or (d) was rightfully obtained by a party from a third-party source. Neither party shall be liable for disclosure made pursuant to a judicial or other lawful government order, provided that the disclosing party gives immediate notice to the other party of the required disclosure so that such other party may take action to contest the order or obtain a protective order. Each party agrees not to use the Confidential Information of the other for any purpose other than as necessary to complete its obligations under this Agreement. Each party agrees not to disclose the Confidential Information of the other to any person or entity, except to those of its directors, officers, employees (if any) and other representatives (collectively the “Representatives”) who have a need to know it in connection with this Agreement, provided that: (i) such Representatives shall be informed of the nature of the Confidential Information and shall be directed by the disclosing party to treat such information confidentially; and (ii) the disclosing party shall be responsible for any failure by it or its Representatives to comply with the provisions of this Agreement.
7. MAGNA’S REPRESENTATIONS AND WARRANTIES
Magna represents and warrants that Magna Materials do not infringe the property rights (including without limitation rights of privacy and publicity, trademark rights, copyrights, patents, trade secrets, and licenses) of third parties; provided, however, that Magna shall not have breached this warranty if Client has or agents of Client have modified the Website in any manner or if the Website incorporates unauthorized third-party materials, through framing, linking or otherwise.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION SEVEN, MAGNA MAKES NO WARRANTIES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY STANDARDS OR REGULATIONS PERTAINING TO ACCESSIBILITY UNDER THE ADA OR CORRESPONDING STATE LAWS. ALL SERVICES WILL BE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. MAGNA FURTHER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY MAGNA OR ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY.
Under no circumstances, including negligence, will Magna or its affiliates be liable for any direct, indirect, incidental, special, or consequential damages, including loss of business or loss of profits, resulting from the use or inability to use the Services, including but not limited to reliance on any information obtained from the Services, or resulting from mistakes, omissions, interruptions, deletion of files or electronic mail, loss of or damage to data, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to force majeure events, regardless of whether Magna is given notice of the possibility of such damages.
8. CLIENT’S REPRESENTATIONS AND WARRANTIES
Client represents and warrants that Client Content does not and will not infringe the property rights (including without limitation rights of privacy and publicity, trademark rights, copyrights, patents, trade secrets, and licenses) of third parties and that Client owns the Client Content or otherwise has the right to provide the Client Content to Magna and to use it on the Website, and that Client has obtained any authorizations necessary for hypertext links from the Website to any third party web sites. Client also represents and warrants that Client Content does not contain any materials that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or may constitute a criminal offense, give rise to civil liability or encourage conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law, regulation or court order. Client represents and warrants that it will not use the Services for any unlawful purpose and will abide by all applicable local, state, national and international laws and regulations regarding its use of the Services. Unless specifically stated to the contrary in the description of the Services, Magna shall not be obligated to perform any act that may, in Magna’s reasonable discretion, cause Magna to host or otherwise come into possession of “individually identifiable health information” as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) through its provision of the Services. Client agrees to enter into a HIPAA-compliant business associate agreement should Magna, in its sole discretion, deem such an agreement necessary to protect Magna’s interests.
Client agrees to indemnify, defend, and hold harmless Magna and its directors, officers, employees, and agents with respect to any claim, demand, cause of action, enforcement action, debt or liability (“Claims”), including civil and criminal penalties and reasonable attorney’s fees, regardless of the merit or ultimate success of such action, directly or indirectly arising from the provision of the Services, including without limitation any Claims regarding the accessibility of the Website under the ADA or corresponding state laws, or from the misuse or non-permissive use of either Client Content or Magna Materials by Client or any third party, or from Magna inadvertently coming into possession of “individually identifiable health information,” or from a breach by Client of this Agreement or of the representations and warranties of Client set forth above, including, but not limited to, Client’s delivery to Magna of purported Client Content that Client does not in actuality own or have the legal right to use.
Unless an alternative fee structure is set forth elsewhere in this Agreement, all fees due under this Agreement shall be paid through recurring credit card charges to be processed on the first (1st) day of each month for Services to be rendered during that month, without the need for invoicing. Magna may, however, in its sole discretion and without prejudice to its obligations to Client under this Agreement, delay the processing of any charge. All fees listed in the Agreement are in United States Dollars (USD). Client authorizes Magna to bill all accounts and related charges to the credit card on file with Magna. Client shall notify Magna of any changes to its credit card information within five (5) days of occurrence. Client’s failure to provide this notification within the specified time period shall constitute a breach of this agreement, and any credit card charges that cannot be consummated as a result of Client’s failure to provide notification shall incur an administrative fee of thirty-five dollars ($35.00) per charge attempt. Any attempted credit card charges that cannot be consummated on the first attempt shall be automatically resubmitted for the amount due, plus any accumulated administrative fees, on a weekly basis, until such outstanding charges are paid in full. Client shall be liable to Magna for any costs associated with actions by Magna to collect fees due hereunder, including costs and reasonable attorney’s fees. Unless otherwise stated elsewhere in the Agreement, Magna offers absolutely no refunds under any conditions.
10. TERM AND TERMINATION
This Agreement shall be for a term as set forth elsewhere in the Agreement. If the Agreement does not designate a non-recurring term, the Agreement shall be automatically renewed for another fixed term of equal length, unless either party receives written notice from the other party of its desire to not renew this Agreement no less than thirty (30) days prior to expiration of the present term.
Magna, at its sole option and without the need for prior notice to Client, may either terminate this Agreement and discontinue any performance hereunder or suspend its performance while keeping this Agreement otherwise in effect in the event that Client has failed to pay fees due under this Agreement for a period of no less than thirty (30) consecutive days. Magna shall provide Client with notice of the suspension or discontinuance of its performance, as the case may be, within a reasonable period of time thereafter. Upon a failure by Client to perform any other obligations under this Agreement, or upon Client’s breach of the representations and warranties set forth in Section 8, Magna may, at its sole option, terminate this Agreement and discontinue any performance hereunder or suspend its performance while keeping this Agreement otherwise in effect if such breach is not cured in a manner deemed satisfactory by Magna, in its sole discretion, within ten (10) business days of receipt of written notice specifying the breach. Should Magna agree to suspend its performance while keeping this Agreement otherwise in effect, Magna shall receive an extension of the deadline for Magna’s own performance corresponding to the time during which Client remains in breach of this Agreement. Magna reserves the right to pursue all remedies available under this Agreement or by law in the event that Magna terminates this Agreement due to Client’s failure to perform its obligations hereunder.
Upon termination or expiration of this Agreement for any reason, or upon suspension of Magna’s performance under this Agreement due to Client’s breach thereof, Client shall immediately pay the full amount of the total fees due under the Agreement, and, in the case of termination or expiration, Magna shall promptly tender all Client Content in its possession back to Client. Magna shall have no responsibility to notify any third-party providers of services, merchandise, or information regarding the termination or expiration of this Agreement or the suspension of Magna’s performance under this Agreement due to Client’s breach thereof, nor any responsibility for any consequences resulting from such action or lack of notification.
11. FORCE MAJEURE AND EXCUSABLE DELAY
If by reason of failure of telecommunications or Internet service providers, failure of domain registration (including, but not limited to, hacking of the domain, transfer of the domain outside of Client’s control, expiration of the domain registration, and loss of access to the domain name), failure of domain name systems (including, but not limited to, outages of a domain name system host and modification of a domain name system that renders the Website inaccessible), temporary or permanent inaccessibility of a third-party server hosting the Website, failure of an electronic mail delivery system (including, but not limited to, outages of the electronic mail deliverability system, delays in the delivery of electronic mail and non-receipt of electronic mail submitted via forms on the Website), labor disputes, riots, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, power outages, or other causes beyond Magna’s control, Magna is unable to perform in whole or in part, temporarily or permanently, its obligations as set forth in this Agreement, then Magna shall be relieved of those obligations to the extent it is so unable to perform and shall have no liability to Client for its failure to perform.
Failure or neglect by either party at any time to enforce, strictly or otherwise, any of the provisions hereof, shall not be construed or deemed to be a waiver of rights hereunder, nor in any way shall affect the validity of the whole or any part of this Agreement or prejudice its rights to take subsequent action.
In the event that any of the terms, conditions or provisions under this Agreement shall be determined to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
The captions and headings contained herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Agreement.
The parties shall at all times be independent contractors and shall so represent themselves to all other parties. No party has granted to the other the right to bind it in any matter or thing whatsoever and nothing herein shall be deemed to constitute a party the agent or legal representative of the other, or to constitute the parties as a joint venture, except as otherwise stated in this Agreement.
Except as otherwise provided herein, neither party may assign this Agreement or any right or obligation under this Agreement and any purported assignment shall be void and ineffective. Nonetheless, Client may, upon written notice to Magna, assign its right and delegate its performance hereunder, in whole or in part, to any affiliated company or to any successor in interest or transferee of that portion of Client’s business as is directly involved in the performance of this Agreement.
This Agreement shall be binding on the parties hereto and their permitted successors and assigns.
This Agreement shall be construed under and governed by the laws (excluding conflicts of laws principles) of the Commonwealth of Massachusetts of the United States of America. Client irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts of the Commonwealth of Massachusetts and irrevocably agrees that any action arising out of, or in any way relating to this Agreement, or any transaction contemplated herein, shall only be brought in the aforementioned courts; provided, however, any such action or proceeding by Magna against Client may also be brought in any court of competent jurisdiction where Client or any of its assets may be located. If litigation arises out of this Agreement, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs from the non-prevailing party.
All provisions of this Agreement relating to warranties, confidentiality, proprietary rights, indemnifications, limitations of liability, and payment obligations shall survive the expiration or termination of this Agreement
Magna reserves the right to amend these Terms and Conditions at any time and without specific notice to Client, provided that Magna makes the amended Terms and Conditions available on its website no less than forty-five (45) days before they are to take effect. Magna does not and will not assume any other obligation to notify Client of any changes to these Terms and Conditions. Continued use of Magna’s Services after any such amendment shall constitute acceptance of the amended Terms and Conditions and their inclusion as part of the Agreement, unless Client gives notice of its intent to terminate this Agreement at the expiration of the then-current term.
Last updated: July, 2017