MASTER SERVICES AGREEMENT
Encore Communications, LLC
Contract Effective Upon Webform Submission
1. Engagement of Services/ Project:
Encore will perform certain marketing and advertising services (the “Services”) for the benefit of the Client as defined in the Statement of Work (the “SOW”) included in the webform. By submitting the webform, the Client agrees to be bound by the terms and conditions of this Agreement and the SOW.
Encore shall have sole discretion in determining the design, implementation, and strategy of the Services, including but not limited to campaign structure, media buying, and creative development.
Client agrees to provide all necessary cooperation, information, and access required for Encore to perform the Services in a timely manner. If the Client’s failure to provide necessary information or approvals causes delays exceeding seven days, Encore reserves the right to adjust timelines or charge additional fees.
2. Project Schedule:
The completion dates for Services related to the Project shall be set forth in the SOW within the webform. Client understands and agrees that Encore may from time-to-time engage third-party vendors, media partners, or contractors to perform work related to the Project and Encore is not responsible for any delays in completing the Project caused solely by the actions or omissions of such third-party vendor, media partner, or contractor.
3. Compensation:
Client agrees to pay the fees outlined in the SOW. Additional services requested by the Client outside the SOW will be invoiced separately.
4. Invoicing and Payment:
All invoices will be sent to the designated email provided in the webform. Encore will invoice Client at the beginning of each month of the advertising campaign based on the monthly target media budget under net-30 payment terms. Encore will make commercially reasonable efforts to align actual media spend with the Client's budget; however, due to factors beyond Encore’s control, actual expenditures may vary by up to 5%. Likewise, the duration of the Project may be adjusted as necessary to meet campaign objectives and ensure the budget is effectively allocated. Encore reserves the right to suspend Services for non-payment, and past due amounts will accrue interest at a rate of 12% per annum or the maximum rate allowed by law, whichever is lower.
If Encore is engaged for any additional services outside the scope of the webform SOW, those fees will be invoiced at the end of each month as incurred, unless a separate SOW is created.
5. Term and Termination:
a. Term:
This Agreement starts upon webform submission (the "Effective Date") and continues until Services are completed or the Account is closed, unless terminated earlier. The plan will automatically renew for the same period selected in the SOW at the end of that period unless Client provides 30 days’ notice of non-renewal.
b. Termination:
Either party may terminate this Agreement if the other party breaches any provision and fails to cure such breach within 15 business days of notice.
Either party may terminate this Agreement upon 30 days' written notice.
c. Effect of Termination:
If the Client terminates the Agreement before completion, or if Encore terminates the Agreement due to the Client's breach of contract, the Client shall owe the remainder of all fees owed for the full term of the Agreement and all expenses accrued until such time as Encore can reasonably terminate the Services.
All Fees due and owing as of the Termination Date must be paid within 10 business days of the termination notice.
Encore retains control of all work created for Client until full payment is made.
All Fees paid prior to the Termination Date are nonrefundable.
6. Confidential Information:
Each party receiving Confidential Information (the “Receiving Party”) agrees to hold the party disclosing the Confidential Information (the “Disclosing Party”) in strict confidence, not to disclose Confidential Information to any third parties, and not to use any of the Disclosing Party’s Confidential Information for any purpose other than the performance of the Receiving Party’s obligations under this Agreement.
"Confidential Information" as used in this Agreement shall mean all information disclosed by the Disclosing Party, or otherwise obtained by the Receiving Party, that is not generally known to the public including, without limitation:
Concepts and ideas relating to the development and distribution of content in any medium or to the current, future, and proposed products or services of Client or its affiliates or members;
Trade secrets, drawings, inventions, know-how, software programs, and software source documents;
Information regarding service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers;
Any information regarding the skills and compensation of employees, Encore’s or other agents of the Client or its affiliates or members;
Proprietary or confidential information of any third party who may disclose such information to either party in the regular course of such party’s business.
Confidential Information shall not include:
Information that is in the public domain through no fault of the Receiving Party;
Information that has been rightfully independently communicated to the Receiving Party free of any obligation of confidence; or
Information that was developed by the Receiving Party independently of and without reference to any Confidential Information provided by the Disclosing Party.
The Receiving Party may disclose the Disclosing Party’s Confidential Information in response to a valid order by any court or other administrative or governmental body, as otherwise required by law, provided that the Receiving Party gives sufficient notice to the Disclosing Party of such compelled disclosure to allow the Disclosing Party reasonable time to file a protective order.
All Confidential Information furnished to the Receiving Party by the Disclosing Party is the sole and exclusive property of the Disclosing Party (or its suppliers or customers as the case may be). Upon request by the Disclosing Party, the Receiving Party agrees to promptly destroy or deliver to the Disclosing Party the original and any copies of such Confidential Information.
This Section 6 shall survive the termination of this Agreement.
7. Liability:
Client agrees that Encore's responsibility to the Client under the Agreement shall be limited to the exercise of ordinary care. Encore shall not be responsible under any circumstances to Client or any third party for delays or failures in performance caused by events beyond Encore's reasonable control including, but not limited to, delays or failures resulting directly or indirectly from strikes, riots, war, military or national emergencies, government shut down or pandemic, Acts of God, natural disasters, fire, outages of computers or equipment, or failure of transportation, communication methods, or power. Encore shall not be responsible for loss of service functionality, content, or complete loss resulting from, but not limited to, DDos attacks, hacking, failure to secure personal passwords, web bots, crawlers, malware, viruses or other such incursions. Furthermore, Encore will not be held responsible under any circumstances for vulnerabilities in open source, custom or third party purchased code within a website or service platform if applicable. Client expressly agrees that in no event shall Encore be liable for lost profit or any indirect, consequential, or punitive damages in connection with the Services contemplated by this Agreement.
8. Indemnification:
Encore undertakes and agrees to defend, indemnify and hold harmless Client and any and all of its boards, commissions, officers, agents, representatives, employees, and elected or appointed officials from and against any and all suits and causes of action, claims, charges, costs, damages, demands, expenses (including, but not limited to, reasonable Attorney's fees and cost of litigation), judgments, civil fines and penalties, liabilities or losses of any kind or nature whatsoever, for death, bodily injury or personal injury to any person, including Encore’s employees and agents or damage or destruction to any property of either party hereto or third persons in any manner arising by reason of or incident in the performance of this Agreement occasioned by any error, omission or negligent act on the part of Encore or Encore's officers, agents, employees or subcontractors of any tier.
Client shall, to the fullest extent permitted by law, indemnify, defend and hold Encore, and its affiliates, officers, representatives, members, managers, employees, agents, owners, vendors, and agents harmless from any and all fines, liabilities, losses, expenses, demands, claims, suits, or judgments, and expenses in any way arising from or relating to Client’s breach of this Agreement or any SOW, or any portion thereof or representation herein or therein, or arising from Client’s negligence or intentional actions or failure to act. Client shall further indemnify and hold Encore harmless from and against any third party infringement claims, demands, or causes of action arising from or related to Client’s Confidential Information and the Deliverables.
9. Ownership and Deliverables:
a. Client acknowledges that all intellectual property owned by Encore prior to the Effective Date of this Agreement, or developed in the execution of this Agreement, including but not limited to accounts, strategies, techniques, proprietary tools, and any custom modules, shall remain the sole property of Encore unless explicitly agreed otherwise in writing.
b. All creative assets (“Deliverables”) developed pursuant to this Agreement are the property of Encore. Encore grants the Client a limited, non-exclusive, non-assignable, non-sublicensable, royalty-free license to use such Deliverables solely for the duration of this Agreement. Upon termination, Client’s right to use any Deliverables incorporating Encore’s Intellectual Property shall immediately cease.
d. Client grants Encore a perpetual, non-exclusive license to use any BBB-provided logos, wordmarks, trademarks, and other brand assets necessary for the creation of creative materials. Additionally, Client authorizes Encore to use these assets in all campaign materials and to run advertisements on Client’s behalf as part of the agreed-upon Services.
10. Client Representations:
Client represents and warrants to Encore the following:
a. That all necessary corporate or other action required to authorize the Client to enter into the Agreement has been taken;
b. That the designated representative has full authority to execute the Agreement on behalf of Client;
c. That the execution and performance of the Agreement does not contravene the Client's articles of incorporation, by-laws, or other organizational documents, or any agreement to which the Client is a party or by which it is bound;
d. That it has all rights, title, and interest to any and all information and content provided to Encore related to the Services and/or the Project including, without limitation, the Confidential Information necessary to grant Encore the right to use and possess such information pursuant to this Agreement; and
e. That Client will abide by all local, state, federal, and international laws, including any and all privacy laws, related to the Services and any work product or Deliverables developed in connection with the Services.
11. Severability:
If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect. The parties shall negotiate in good faith to modify any invalidated provision to reflect the original intent as closely as possible.
12. Waiver:
The waiver of a breach of any provision of this Agreement by either party shall not operate or be construed as a waiver of any other or subsequent breach for such waiving party.
13. Complete Agreement:
This Agreement, and any SOW, contain the complete agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements between the parties. Client further agrees that it did not rely on any statements, representations, agreements, or warranties, except as expressed herein or the SOW. The terms of this Agreement will govern all services undertaken by Encore for Client; provided, however, that in the event of any conflict between the terms of this Agreement and the SOW, the terms of the SOW will control. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.
12. Assignment:
Client shall not assign, delegate, or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Encore. Any attempted assignment in violation of this provision shall be null and void.
13. Amendment:
This Agreement may only be modified or amended by a written document signed by both parties. No verbal modifications or waiver of any terms shall be valid.
14. Governing Law and Jurisdiction:
This Agreement is governed by the laws of the State of Texas, U.S.A. without reference to conflicts of law principles. Both parties to this Agreement hereby consent to the exclusive jurisdiction and venue of the state district courts in Gregg County, Texas or the federal district court in the Eastern District of Texas for all disputes arising out of or relating to the subject matter of this Agreement.
ACCEPTANCE
By submitting the webform, Client acknowledges and agrees to be bound by the terms and conditions of this Agreement and the associated SOW.
