Master Service Agreement
Date: May 14, 2018
Subject: This Master Service Agreement (this “Agreement”) is entered into by and between Tidal Labs, Inc., a Delaware corporation (“Tidal”) and all Clientsyou individually, if you are agreeing in your personal capacity, or if you are authorized to consent on behalf of Tidal Labs (“your company or organization, the entity for whose benefit you act (“You” or “Client”),”), and applies to any initial, and subsequent, supplemental contractual instruments, including Order Forms or Statements of Work (each, a “SOW”). If a SOW conflicts with the terms of this Agreement, the SOW will prevail to the extent of the conflict.
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings
“Change of Services” means new information, instructions, and unanticipated events that materially alter the scope or nature of the project and/or substantially increase the resources to be provided by Tidal during the performance of the Services, in a manner that deviates from the applicable SOW.
“Client Derivative Works” means derivative works of Client Property (which may include, without limitation, specific derivative works of Client-owned website assets).
“Client Marks” means any Client trade name, trademark, service mark, logo, or other designation of origin associated with Client’s products or services.
“Client User PII” means any personally identifying information pertaining to Client’s users.
“Confidential Information” means all written or oral information, disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), related to the business, products, services, or operations of the Disclosing Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including inventions, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, designs and techniques, and information regarding products, marketing, business plans, budgets, financial statements, contracts, prices, suppliers and agents. Confidential Information includes the features and functionality of the Platform (both current and planned), any Tidal pricing information provided to Client, and the terms of this Agreement. A Party’s Intellectual Property shall be considered Confidential Information.
“Contributed Content” means content delivered by a Contributor to the Platform, to be used by Tidal during the performance of the Services.
“Contributor” means a third party (e.g. influencer, blogger, etc.) which provides Contributed Content, either voluntarily or through compensation.
“Custom Work Product” means Work Product developed pursuant to this Agreement that is expressly identified as Custom Work Product in a SOW.
“Data Protection Laws” mean all applicable privacy, data protection or similar laws and regulations anywhere in the World, as the same may be amended from time to time, including to the extent applicable to this Agreement, the EU General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), and any applicable implementing legislation or any amendment thereto.
“Fees” means any fees, expenses, applicable taxes, third-party pass-through expenses, interest, late fees, penalties, and any other amounts due and payable by Client to Tidal under this Agreement.
“Intellectual Property” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, whether or not registered, including all registrations and related applications, and all goodwill, associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; (v) all other rights covering intangible property recognized in any jurisdiction.
“Platform” means Tidal’s ContentMetric® Platform, consisting of any Tidal source code, object code, assets, algorithms, application programming interface, related documentation, and any updates.
“Contributors PII” means any personally identifying information pertaining to Contributors that is collected or used by the Platform.
“Services” means the products and services that are licensed and/or performed by Tidal to Client pursuant to a SOW.
“Tidal Marks” means the TIDAL LABS word mark, stylized TIDAL logo, TIDAL FOR BUSINESS service mark, CONTENTMETRIC word mark, and any other trademark, service mark, logo, and any other Tidal trade name, trademark, service mark, logo, or other designation of origin associated with Tidal’s products or services, whether or not registered.
“Tidal Prior Work” means any items developed, licensed, or acquired by Tidal prior to the start of, or independently from, the project for Client and/or outside the scope of work of the applicable SOW.
“Work Product” means any tangible and intangible property created, written, developed, conceived, designed or made, in connection with this Agreement, (i) by or on behalf of Tidal, or (ii) by or on behalf of Client, except for Client’s Derivative Works and Custom Work Product owned by Client.
2. Services and Deliverables.
2.1. Services. Tidal will provide the Services and any deliverables in a manner consistent with the terms of each SOW.
2.2. Contributed Content. The Services may include Contributed Content. Client understands that Contributors are independent influencers who choose to syndicate content through Tidal’s network, and/or participate in specific campaigns managed by Tidal, and are not under Tidal’s direct editorial control. Each Contributor enters into a standard user agreement with Tidal in connection with the sign-up process on the Platform, pursuant to which Tidal obtains a non-exclusive, fully assignable, perpetual, worldwide license to use all Contributed Content.
2.3. Changes of Services. Tidal will communicate promptly to Client when a requested change constitutes a Change of Services (including any additional Fees) provided that any Change of Services shall be effective only when approved in writing by both Parties (e-mail is sufficient). Each approved Change of Service is hereby incorporated herein by this reference.
3. Client’s Obligations. Client shall cooperate in the performance of the Services, including providing information, materials, and personnel as reasonably requested by Tidal. Tidal shall not be responsible for any delays, damages, or expenses directly caused by the inaccuracy of such information or materials, and/or by acts or omissions of Client’s personnel.
4. Fees; Taxes.
4.1. Invoicing and Payment. Client shall pay all Fees promptly after receipt of each invoice or as otherwise specified in the applicable SOW, including any additional Fees due to approved Change of Services and any late fees and penalties assessed in accordance with a SOW. Payment may be performed by check, wire, or as otherwise agreed in writing by Tidal.
4.2. Taxes Generally. Each Party will be responsible for any real or personal property taxes, assessments or levies on property it owns, or that it otherwise has a responsibility to report and remit; any franchise and privilege taxes on its business; any taxes based on its net or gross income or gross receipts (not otherwise in the nature of a sales or use tax); and any taxes arising from the employment or independent contractor relationship between such Party and its personnel or contractors.
4.3. Sales & Use Taxes. Client shall be responsible for payment of all sales, use and excise taxes (excluding those based on Tidal’s net income) on any Services and deliverables used or consumed by Client.
5. Privacy and Data Protection.
5.3. Data Protection. The Parties agree to comply with the provisions of any Data Protection Laws, to the extent applicable to this Agreement. The Parties shall at all times during the Term comply with the provisions of Data Processing Addendum located at [example.com] and incorporated by reference into this Agreement. If a governing authority issues a set of Standard Contractual Clauses (or equivalent document) which is designed to enable either Party to comply with the new General Data Protection Regulation (EU) (2016/679) (the “GDPR”), the Parties agree to promptly execute and to comply with such new set of Standard Contractual Clauses, in substitution for the clauses in Annex A. In the event of any conflict between the provisions of this Agreement and Annex A, the provisions of Annex A shall control. In the event that any amendments need to be made to this Agreement to enable a Party to comply with its obligations under the General Data Protection Regulation (EU) (2016/679), the Parties agree to amend this Agreement to the extent necessary to enable that Party to comply with its obligations, by executing a written variation agreement, prior to the relevant obligations coming into force.
6. Intellectual Property Rights.
6.1. Ownership. Tidal has and will retain all right, title, and interest in and to the Contributors PII, the Platform, the Tidal Marks, Tidal’s Confidential information, and any Tidal Prior Work (collectively, “Tidal Property”). Client has and will retain all right, title, and interest in and to the Client User PII, Client Marks, Client’s Confidential Information, and Custom Work Product (collectively, “Client Property”).
6.2. Work Product. All right, title and interest in and to the Work Product, together with all Intellectual Property contained therein or related thereto, will be and continue to remain the property of Tidal. To the extent of any Client interest in any Work Product, Client agrees to assign and, upon creation automatically assigns, to Tidal the ownership of Client’s interest therein, without the necessity of further consideration.
6.3. Custom Work Product. All right, title, and interest in and to Custom Work Product identified in a duly executed SOW will initially vest in Tidal as Work Product under this Agreement. Upon payment of all Fees owed with respect to any items of Custom Work Product, Tidal shall assign to Client all Intellectual Property that Client may have in and to the Custom Work Product. Notwithstanding the foregoing, to the extent that any Tidal Property has been embedded into any Custom Work Product, such Tidal Property shall remain the property of Tidal, and will be used by Client solely pursuant to the following Section 6.4.
6.4. General License of Tidal Property. Tidal hereby grants to Client a revocable, non-exclusive, non-transferable, worldwide license to use all Tidal Property solely to the extent contained in or necessary for the proper functioning of the Platform, any Custom Work Product, any Contributed Content activated by Client, and any other Work Product provided for Client’s use pursuant to a SOW (together, the “Tidal Solution”). The license granted pursuant to this Section 6.4 will survive for the term specified in an applicable SOW, except that this license will survive indefinitely with respect to Contributed Content activated by Client, and any Tidal Property embedded in Custom Work Product.
6.5. General License of Client Property. Client hereby grants to Tidal a non-exclusive, non-transferable, limited license to use the Client Property for the sole purpose of performing Tidal’s obligations under this Agreement.
6.6. Use of Marks. Each Party grants to the other Party a non-exclusive, non-transferable, limited license to use the other Party’s Marks in connection with the Tidal Solution, provided that any related use or display shall be in such form and manner as approved in writing by the licensor.
6.7. Further Cooperation. Each Party agrees to execute such further documents and to perform such other acts as reasonably necessary to evidence or perfect the rights of the other Party as defined in this Section.
7.1. Use of Confidential Information. Except as otherwise expressly provided in this Agreement, each Receiving Party will (and will cause its employees, agents, and representatives to) maintain all Confidential Information received by it from the Disclosing Party in the strictest confidence, and will only use such Confidential Information for the purpose contemplated in this Agreement. Each Receiving Party will not disclose the Disclosing Party’s Confidential Information without prior written consent of the Disclosing Party. The Receiving Party may permit access to Confidential Information only to those of its employees, agents, and authorized representatives who have signed confidentiality agreements with such Receiving Party, or are otherwise bound by confidentiality obligations to it, that are at least as restrictive as those contained herein.
7.2. Exceptions to Confidentiality. The restrictions on the use or disclosure of Confidential Information in this Agreement do not apply to any Confidential Information that the Receiving Party can demonstrate: (i) is generally available to the public without breach of this Agreement by the Receiving Party, its agents, representatives, or employees; (ii) was rightfully in the Receiving Party’s possession prior to disclosure to it by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of or reference to any of the Disclosing Party’s Confidential Information; (iv) was rightfully received by the Receiving Party from a third party who did not have a duty of confidentiality to the Disclosing Party; or (v) was disclosed in response to a valid order by a court or other governmental body, provided, that the Receiving Party must notify the Disclosing Party in advance of such disclosure in order to permit the Disclosing Party to seek confidential treatment of such Confidential Information. For the avoidance of doubt, and notwithstanding anything else herein to the contrary, Tidal may collect aggregate statistical data about the use of the Platform and use such data for its internal business purposes, and in connection with its marketing efforts.
7.3. Remedies for Breach of Confidentiality. Each Receiving Party agrees that the Disclosing Party would suffer immediate and irreparable harm if any of its Confidential Information is used or disclosed in a manner not permitted by this Agreement. Upon a breach or the threatened breach of this Section (Confidentiality), the non-breaching Party will be entitled to injunctive relief restraining the breaching Party from such breach or threatened breach. Nothing herein shall be construed as prohibiting the non-breaching Party from pursuing any other remedy against the breaching Party on account of such breach or threatened breach.
8. Term. This Agreement will have an initial term commencing on the date hereof and continuing for the longer of (i) 12 months from the date hereof, and (ii) the date that there are no remaining obligations under an applicable SOW (the “Term”). The Term will automatically renew for successive terms unless cancelled with at least [ ]60 days’ written notice prior to the scheduled expiration of the then current Term, unless otherwise provided in an applicable SOW.
9.1. Voluntary Termination. Either Party may terminate this Agreement by giving written notice to the other Party no more than 90 days, and no less than 30 days, prior to an automatic renewal date.
9.2. Termination for Breach. Either Party may immediately terminate this Agreement by written notice to the other Party if the other Party has breached a material covenant of this Agreement, or if any representation or warranty of such other Party is found to have been untrue when made in any material respect; provided, however, that If a breach of covenant or inaccuracy of a representation or warranty is curable, the non-terminating Party will have 30 days from the notice date to attempt to cure the defect, to the terminating Party’s reasonable satisfaction. For the avoidance of doubts, failure to pay any Fees under this Agreement when due shall be considered a material breach.
9.3. Termination for Insolvency. Each Party may terminate this Agreement immediately by written notice to the other Party upon the occurrence of any of the following events: (a) the other Party commences a voluntary proceeding under any Federal or state bankruptcy law; (b) the other Party has such a proceeding filed against it; (c) the other Party admits the material allegations of any petition in bankruptcy filed against it; (d) the other Party is adjudged bankrupt; or (e) the other Party makes a general assignment for the benefit of its creditors, or if a receiver is appointed for all or a substantial portion of such Party’s assets.
9.4. Effect of Termination. Upon termination of this Agreement for any reason, Client will immediately cease using, and delete from its computer systems, all copies of any Tidal Property, with the sole exception of Custom Work Product. Client must also immediately cease using, and delete from its computer systems, all Contributors PII, except for Contributors who explicitly elected to submit identifying information to Client. Termination or expiration will not limit any rights or remedies of either Party with respect to past performance, and will not relieve Client of its obligation to pay all Fees and other amounts owed under this Agreement for periods up to and including the termination or expiration hereof.
10. Representations and Warranties.
10.1. By Tidal. Tidal represents and warrants as of the date hereof, and as of the date of any subsequent SOW that (i) Tidal is the owner of the Tidal Property or otherwise has the right to grant to Client the license to use the Tidal Solution purchased by Client, as set forth in this Agreement and any applicable SOW; (ii) there are no pending claims by any third party based on an allegation that the Tidal Solution violates, misappropriates or infringes on such third party’s Intellectual Property; (iii) the Tidal Solution does not contain any back door, virus, or other software routines or hardware components designed to permit unauthorized access, to disable, erase, or otherwise harm software, hardware, or data; (iv) the Services will be in accordance with generally accepted professional standards; (v) Tidal has the experience and skill required to perform the Services; (vi) Tidal will maintain physical, network, and data security consistent with the reasonable commercial practices of the industry and as provided in any Tidal policies; (vii) Tidal will use commercial reasonable efforts to ensure uptime and availability of the Platform as outlined in the Service Level Agreement available at ; and (viii) If content monitoring is required pursuant to a SOW, Tidal will use commercial reasonable efforts to programmatically monitor Contributed Content on the Platform used in Client campaigns for adherence to agreed policies with Contributors. Within 24 hours’ notice from Client, Tidal will communicate with any Contributor responsible for unsuitable Contributed Content and, if so requested by Client, will either remove the offending Contributed Content from the Platform and/or ban the Contributor from contributing additional Contributed Content to the Client’s designated website. Tidal maintains a policy intended to comply with provisions of the Digital Millenium Copyright Act (17 U.S.C. Sec. 512) providing a safe harbor for certain service-providers who respond to legitimate third-party notices of infringing content. A copy of this policy is available at:
10.2. By Client. Client agrees that Client will not, nor will it permit anyone else to: (i) adapt, alter, modify, improve, translate, or create derivative works of the Platform; (ii) attempt to access or download the technology used by Tidal to provide the Services (other than as expressly provided by Tidal for Client to use the Platform) or reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Platform; (iii) provide any third party access to or use of the Platform on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment; (iv) transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the operation of the Platform; (v) attempt to test the vulnerability of the Platform or Tidal system or network or circumvent any security or authentication measures protecting the Tidal Property; (vi) remove any proprietary notices or labels in documentation provided by Tidal (except for Custom Work Product); or (vii) use any Tidal Property in any manner detrimental to Tidal, including for the purpose of creating or improving any services or technology that performs similar functions or is competitive with Tidal.
11. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 10 (REPRESENTATIONS AND WARRANTIES), THE SERVICES, INCLUDING THE TIDAL SOLUTION AND ALL WORK PRODUCT, AND CUSTOM WORK PRODUCT ARE PROVIDED ON AN “AS-IS” BASIS. TIDAL DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TIDAL DOES NOT WARRANT THE ACCURACY, TIMELINESS, OR COMPLETENESS OF ANY INFORMATION OR MATERIALS PROVIDED TO CLIENT IN CONNECTION WITH THIS AGREEMENT, OR THAT THE OPERATION OF THE PLATFORM OR ANY OTHER COMPONENT OF THE TIDAL SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. THE SOLE REMEDY FOR ERRORS IN THE OPERATION OF THE PLATFORM OR ANY OTHER COMPONENT OF THE TIDAL SOLUTION WILL BE PURSUANT TO APPLICABLE TECHNICAL SUPPORT TERMS INCLUDED IN AN SOW.
12. Limitation of Liability. The maximum aggregate liability of Tidal hereunder shall be limited to the total amount of fees paid or payable to Tidal by Client under this Agreement. In no event shall either Party be liable, whether under contract, statute, tort (including negligence) or otherwise, for any indirect, incidental, consequential, punitive or special damages, even if that Party is notified in advance of such possibility, arising out of or pertaining to the subject matter of this Agreement.
13.1. Indemnification by Tidal. Except to the extent proximately caused by Client or which arises under Client’s indemnity obligations below, Tidal will defend and indemnify Client from and against any loss, damage, liability, claim, demand, suit and expense (including reasonable attorney fees) (collectively, “Loss”) that may be incurred by Client as the result of third-party claims brought or threatened against Client and arising out of Tidal’s breach of its representations and warranties hereunder or actions or omissions proximately caused by Tidal in providing the Services to Client.
13.2. Indemnification by Client. Except to the extent proximately caused by Tidal or which arises under Tidal’s indemnity obligations above, Client shall indemnify and hold Tidal harmless from and against any Loss incurred as a result of any claim brought against Tidal by any third party, arising out of Client’s breach of its representations and warranties hereunder or actions or omissions proximately caused by Client.
13.3. Obligations of the Indemnified Party. Each Party seeking indemnification pursuant to this Section 13 shall (i) give the other Party written notice of any claims that may give rise to liability under this Section 13, (ii) reasonably cooperate in the defense of such claim, and (iii) give the potential indemnitor a reasonable opportunity to defend and/or settle the matter at its own expense; provided, however, that the indemnitor shall not enter into settlement of any third-party claim without the prior written consent of the indemnified Party, not to be unreasonably withheld.
14. Force Majeure. Neither Party shall be liable for any Loss or delay caused by circumstances beyond its control, including changes to restrictions of law or regulations, labor disputes not involving the Party’s own employees, power or telecom failures, floods, hurricanes, tornadoes, high winds, riots, acts of terror or war, mechanical or electronic breakdowns, or acts of God.
15. Publicity. Each Party is permitted to use the other Party’s name in marketing and press materials upon such Party’s written consent, not to be unreasonably withheld. A joint press release, to be agreed on between the Parties, will be distributed by Tidal and Client in connection with launch of the Client’s designated website.
16. Independent Contractor. Tidal is an independent contractor of Client. The Parties have no other relationship.
17. Assignment; Subcontracting. Tidal may sub-contract any of its responsibilities under this Agreement; provided, however, that Tidal will at all times remain liable for performance of its responsibilities hereunder by such sub-contractors as if performed directly by Tidal. Neither Party may assign this Agreement without the prior written consent of the other, except that Tidal may assign this Agreement to an affiliate or to any person or entity that acquires by sale, merger or otherwise all or substantially all of its assets, stock or business.
18. Notices. Any notices (including invoices) may be given by email or other generally accepted means of providing notice at the email or physical address used by the Parties in performance under this Agreement, except that any claim for damages or indemnification hereunder must be given in a way that provides for independent confirmation of actual receipt. Each Party is responsible for notifying the other Party of any address change.
19. Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York. The Parties irrevocably consent to the exclusive jurisdiction and venue of the federal, state, and local courts located in New York County for any dispute arising from or related to the relationship between the Parties, including this Agreement, and agree to bring any action solely in such courts.
20. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, the other provisions will remain in full force and effect to the greatest extent possible, provided that the omission of the invalid provision does not materially prejudice the rights of either Party.
21. Survival. The provisions on Sections 4 (Fees; Taxes), 6 (Confidentiality); 8.4 (Effect of Termination) and all the provision from Section 9 to Section 22 shall survive the termination of this Agreement.
22. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior agreements. This Agreement may be modified only by a signed writing, duly executed by both Parties.
23. No Waiver. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
24. Method of Execution. This Agreement may be signed in any way permitted by law, including electronically, and may be signed in counterparts, each of which is binding and all of which together shall constitute one and the same instrument.