Terms & Conditions
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“Agreement”), dated and effective as of the date found on Client’s executed Growth Program Recommendation (“Effective Date”), is made and entered into by and between the partner facility (“Client”) and Faebl Studios LLC, a Wyoming limited liability company (“Faebl”), with offices in Los Angeles, California. Client and Faebl are individually referred to herein as “party” and collectively as the “parties”. Now, therefore, the parties agree as follows:
Scope(s) of Work. Faebl agrees to undertake and perform certain professional services and provide certain deliverables (collectively, the “Services”) in accordance with the terms and conditions herein, as may be requested by Client from time to time. The Services to be performed, Faebl’s compensation, the schedule for performance for each Service, the project specifications, and any other relevant terms shall be set forth in one or more written Scopes of Work to this Agreement and issued by Faebl to Client. A Scope of Work may be in the form attached hereto, or in any other form as may be agreed upon by the parties. A Scope of Work shall be valid and binding upon the parties only if accepted in writing by Client and Faebl. Each duly executed Scope of Work shall be subject to the terms and conditions of this Agreement, except to the extent expressly modified by the Scope of Work. In the event that the terms of a Scope of Work conflict with the terms herein, the Scope of Work terms shall govern for the Services performed thereunder.
Services to Be Provided. Faebl develops creative digital strategies and proprietary technologies and hereby agrees to provide product development, branding, content development, media buying, and/or social marketing Services to Client in accordance with the project specifications set forth in the Scope(s) of Work, and any attached proposals, if applicable. The Services, as further defined in a Scope of Work, may include research and development, concept development, creative direction, consultation, and input from Faebl’s team. The Services also include the “Deliverables”, which shall be identified in a Scope of Work and may include any and all materials, concepts, strategies, ideas, business methods and processes, designs, logos, marks or names, drafts, work product, and/or any other works of authorship generated or conceived in the course of developing or providing the Services to Client. Additional Services can be provided under additional Scopes of Work.
Faebl’s performance of the Services shall be subject to the standards and conditions set forth at Exhibit A and incorporated herein by reference. Client and Faebl agree that all marketing and advertising programs by either shall be conducted in compliance with all applicable standards of ethics, laws, and regulations. In performing the Services under this Agreement, Faebl will observe industry standards of integrity, good faith, and fair dealing. Faebl represents, warrants, and covenants that it shall comply with all laws applicable to its conduct relating to this Agreement, including, without limitation, federal and state fraud and abuse and self-referral laws, and the California laws and regulations concerning healthcare services advertising.
Term. Unless otherwise specified, the term of this Agreement shall commence on the Effective Date and thereafter shall remain in effect until Faebl has completed the Services and received all payments due under the Agreement and any Scopes of Work (“the “Term”), unless terminated earlier as provided for herein.
Payment of Fees. Client shall pay Faebl the fees set forth in the Scope(s) of Work, on the terms set forth therein. The following provisions shall also apply to those fees due and payable to Faebl in consideration of performance of the Services as specified in each Scope of Work:
Initial Payment. The initial payment, as identified in a Scope of Work, must be paid upon execution of the Scope of Work and prior to the Faebl’s commencement of Services.
Invoicing. Unless otherwise specifically stated in a Scope of Work, Faebl shall provide Client monthly invoices setting out any fees and amounts due and payable to Faebl hereunder. Client will pay all undisputed fees and amounts to Faebl upon receipt of each invoice, unless otherwise specified in a Scope of Work. If payment is not received within fourteen (14) days from the due date of such payment, Faebl may suspend further performance under one or more Scopes of Work until payments are current. In the event of a disputed fee, Client must notify Faebl within seven (7) days of receipt of the invoice containing the disputed fee and detail the reasoning for the dispute. Faebl and Client will mutually agree as to a resolution of the dispute and Client will immediately pay the resolved fee.
Payment. Payment may be made by Client to Faebl by check to the remittance address on the applicable invoice, via ACH through Client’s bank or through Faebl’s invoicing platform, via wire transfer, or with credit card (which credit card payment may incur a three percent [3%] processing fee).
Estimated Costs and Fees. Client acknowledges that all fees and costs are based upon the Services outlined in the Scope of Work and may be estimated if noted as such. Changes to a Scope of Work and/or project specifications will require changes to costs and fees. Changes in conditions, including, without limitation, changes in laws or regulations occurring after the budget is established or other circumstances beyond Faebl’s control shall be a basis for equitable adjustments in the budget and schedule.
Expenses. Notwithstanding Faebl’s invoicing procedures, Client shall promptly reimburse Faebl for out-of-pocket expenses associated with the Services. Any out-of-pocket expenses must be pre-approved in writing. Any ad spends or travel directed by Client shall be reimbursed within seven (7) days.
Font Licenses. Despite Faebl’s best efforts, if an open source font or custom font cannot be used for Client’s project, any applicable license fees required for usage are not included, but will be disclosed to Client, in writing, for approval in the applicable Scope of Work.
Late Payments. Faebl will charge a late payment fee of 10% per annum, or the maximum percentage allowed by law, whichever is the lesser, for any balance more than thirty (30) days past due.
NON-REVOCABLE; NON-REFUNDABLE. Except as provided herein, Client acknowledges that this a non-revocable services contract, and that Faebl may commence Services immediately upon receiving a duly executed Scope of Work. As such, Client is liable for payment of all monies stated on such Scope of Work in accordance with the payment schedule shown, subject to completion of the Services in accordance with the terms of the Agreement by Faebl. Client is not entitled to a refund or any pro-rata amount should Client decide to amend or cancel a Scope of Work prior to completion. All flat fees are earned upon receipt.
Guarantee. It is our goal to generate the highest Return on Investment (ROI) possible, and our work is oriented toward achieving this goal. At a minimum, we guarantee that the Billing Value (see below) produced at the end of each 3-month term will be equivalent to two times the fees paid (minus management fees) for that same period. Should an individual term’s produced Billing Value not meet this threshold, the Faebl will extend that term with no further billing until such time as the Billing Value threshold is met. The company must provide accurate call, chat, and/or email logs and admissions reports upon request or this Section is void.
Billing Value is defined as the US dollar equivalent of the Company’s average client value, as provided to Faebl by Company, times the number of new client admits produced during the term. Billing Value does not imply billing collection.
Faebl Studios is not responsible for the Company’s actual collection of program fees or billing reimbursements, and the Company’s failure to collect is not applicable to this Section.
Client Cooperation. Faebl shall use its best efforts to complete the Services contemplated in each Scope of Work as quickly and efficiently as possible, in accordance with any timelines set forth in the Scope of Work. Client acknowledges that Faebl’s ability to complete the Services pursuant to the schedule set forth in the Scope of Work is dependent upon Client’s cooperation, data, content supply, input, feedback, and approvals, over which Faebl has no control. Faebl is not liable for any delays in delivery of any Services pursuant to this Agreement caused by Client’s lack of cooperation or delay. Faebl shall accept copy associated with the Services in Google Docs, Microsoft Word, Excel, or Simple text formats and images in JPEG, PNG or TIFF formats. Client agrees to use Faebl’s chosen platform(s) for project management and communication.
Third Party Searches and Legal Clearances. Unless provided for otherwise in a Scope of Work, Client shall be responsible for obtaining all legal clearances relating to content or branding included in the Deliverables. These legal clearances shall include, but are not limited to, trademark and patent searches, talent agreements (including, without limitation, any necessary SAG or AFTRA approvals), model usage, image or video licenses, music licenses (including, without limitation, any necessary performance, master, and/or sync licenses), prop releases, sweepstakes and contest agreements, and/or any other necessary licenses, consents, and/or permissions for materials owned or controlled by any third party.
Status Updates. Faebl shall provide Client with regular status updates by teleconference and/or email, when applicable or requested, at mutually agreed times during the Term.
Change Orders. Any changes to a previously agreed upon Scope of Work, including changes in project specifications, will require changes to costs and fees and must be approved in advance in writing by both parties. The following provisions shall also apply to any change orders:
In the event that Client requires a change to a Scope of Work, or desires to change or modify any Service set out in a Scope of Work, including after the work has begun, Client will be held financially liable for any and all work completed by Faebl up to the point of change including all out-of- pocket expenses and any unavoidable costs incurred thereafter.
If Client wishes Faebl to provide services in addition to the Services as outlined in a Scope of Work, those services shall be determined pursuant to a new Scope of Work or an amended Scope of Work and budget. Faebl will submit a proposed budget for each such service and, once the budget for those services is approved by Client, Faebl will commence such services.
Proofing and Approval of Deliverable(s). Faebl shall make every effort to ensure that the final Deliverables are free of any grammatical and spelling errors, as well as meet design and project specifications, before giving the final product to Client (“Final Deliverable(s)”). It is agreed, however, that it is Client’s sole responsibility to ensure that there are no errors contained in the final copy and that the Final Deliverable meets Client’s approval. Faebl will provide a proof of the Final Deliverable in final form to Client for final sign-off by Client before the launch or release date, as negotiated between Client and Faebl. Client will designate a representative who will be responsible for the sign-off and approval of all Final Deliverables. If proofs, comps, or requests for a respective project/phase have been sent for approval via email or other agreed upon method, Client has up to ten (10) business days to respond with feedback for changes, unless different timelines have been communicated and agreed upon by the parties in a Scope of Work. If Client does not respond within ten (10) business days, work will be considered approved. Any change order request made after ten (10) business days may require additional billable hours of work. In such case, Faebl will first advise Client whether additional hours are required to effectuate such change and, if so, the parties shall agree to any billable hour charge for such work prior to its implementation. Any such charges shall be confirmed in writing prior to invoicing for those additional amounts. Client will provide final written sign-off of the Final Deliverable in a timely manner, as Faebl will not be held responsible for missed deadlines or closing dates caused by the delay of Client in providing written approval.
Project Delivery. Prior to launch or the release of Final Deliverables to Client, the remaining balance owed per the applicable Scope of Work, if any, is due and payable in full to Faebl. Without payment in full, the site will not launch nor will any Final Deliverables be released to Client or any other third party. Upon receipt of payment in full, Final Deliverables will be published to Client’s hosting service or agreed hosting solution or delivered via Dropbox. If Client requests files via hard drive, Client must provide a hard drive and be responsible for all shipping charges, if applicable. At this point, the Final Deliverables will be accepted by Client “as is” and no further development, design, or consultation will be provided without first revising or extending this Agreement or a Scope of Work with new consideration to be paid by Client to Faebl to cover such services.
Intellectual Property Licensing and Ownership.
“Intellectual Property” or “IP”, as used herein, may include Confidential Information and means, collectively, copyrights, including all registered and unregistered copyrights, copyrightable works, and writings and other works of authorship embodied in tangible form, whether now in existence or hereafter created, and owned or controlled by a party in any jurisdiction, including any applications relating to any of the foregoing, as applicable, and any renewals of any of the foregoing; know-how, including unpatented technical information, designs, knowledge, software, and data useful or necessary to enable a party to provide its services; patents, including any and all patents and patent applications, whether now in existence or hereafter created, and owned or controlled by a party in any jurisdiction, including, without limitation, (i) the patents and patent applications (and all patents issuing therefrom) and; (ii) any continuing applications thereof including divisionals, continuations, continuations-in-part, reissued and reexamined patents; and (iii) all corresponding foreign patents or patent applications; trademarks and trade dress, including all registered and unregistered trademarks, trade dress, service marks, and logotypes, whether now in existence or hereafter created, and owned or controlled by a party in any jurisdiction, including any applications relating to any of the foregoing, as applicable, and any renewals of any of the foregoing; and a party’s trade secrets, including any formula, pattern, compilation, program, device, method, figure, or process.
Intellectual Property Licensing. Client represents and warrants that, to the best of its knowledge, as of the Effective Date and continuing throughout the Term, all Intellectual Property that Client has created, published, or produced or that Client has access to through a licensing arrangement with any other entity, provided Client has the right to license or sublicense the foregoing to Faebl under this Agreement, is intellectual property owned or licensed by Client (collectively, “Client IP”). Client hereby grants to Faebl, during the Term, a limited, non-exclusive, non-transferable license to use Client IP (as provided by Client for use hereunder) as reasonably necessary for Faebl to perform its obligations under this Agreement.
Intellectual Property Ownership. Except as expressly stated otherwise in a Scope of Work, and once approved by Client and after all fees due to Faebl are paid in full, Client shall own all right, title, and interest in and to the Deliverables (excluding any Faebl IP and Third Party IP, as defined below), including any and all ideas, creative concepts, designs, artwork, and copy created by Faebl for which Client has paid. The Deliverables, including any designs, artwork, copy, and any and all characters, objects, sound, and/or art embodied therein, and any trade names, trademarks, names, or other identified use with or in conjunction with any Deliverable created, designed, and/or developed by Faebl for Client from the inception of this Agreement, together with any software, program, or code embodied therein, and all copyrights therein and thereto, and any and all renewals and extensions thereof, shall be considered “work made for hire” (as defined in 17 U.S.C. Section 101), including, but not limited to, any general purpose engine, subroutine, technique, or tool that is developed and/or designed by Faebl to be included in any Deliverable, including but not limited to, animation and background graphic drivers, audio drivers, menuing systems, operating systems, multi-tasking kernels, and other general purpose routines and drivers, including any and all additions, enhancements, upgrades, and/or modifications to any Deliverable that may be designed and/or developed by Faebl during the course of its rendition of Services to Client. Client shall have the sole and exclusive right to the copyright in the Deliverables and any and all artwork, characters, objects, or audio-visual elements embodied in such Deliverables registered in Client’s name, as the owner and author thereof, and to secure any and all renewals and extensions of such copyrights, if any. If, whether by statutory amendment or judicial decision, Client shall be deemed not to be the author of the Deliverables, this Agreement shall constitute an irrevocable transfer to Client of ownership of copyright (and all renewals and extensions) in such Deliverables and the related software.
Third Party Intellectual Property. Notwithstanding the foregoing, Client understands and acknowledges that certain Intellectual Property, including but not limited to artwork and photographs, software (e.g., WordPress), and analytics technology (e.g., Google Analytics) (“Third Party IP”), contained in materials supplied by Faebl to Client hereunder, may be licensed from third parties, and that Client may be restricted from reusing or altering such Third Party IP by the terms of the applicable licenses; provided, however, that Faebl agrees to and shall identify (in writing prior to use) any and all such Third Party IP covered by any such third party license.
Faebl Intellectual Property. The parties further acknowledge and agree that in order for Faebl to perform one or more of its obligations under this Agreement in connection with a specific Scope of Work (or any specific parts thereof) Faebl may, in some instances, need to utilize certain of Faebl’s own Intellectual Property and proprietary pre-existing code, technology, or software, including Faebl’s Social Press Kit and AmpLive platforms (“Faebl IP”), which may be upgraded, updated, and modified by Faebl as necessary from time to time. Such Faebl IP shall not be deemed included in the Services provided hereunder or in any Deliverable, and all rights in and to such Faebl IP are and shall remain the sole and exclusive property of Faebl, subject to the license granted to Client hereunder. According to the terms explicitly outlined in the Scope of Work, Client shall receive a non- exclusive license to use the proprietary Faebl IP (e.g., libraries, classes, functions, and other code) that is used in connection with the Services provided hereunder or in any Deliverable. Client acknowledges that Faebl may license or sell Faebl IP to any client, entity, or industry, worldwide, and may use, modify, or otherwise edit Faebl IP, without restriction. Notwithstanding anything contained herein to the contrary, Faebl shall retain all right, title, and interest in and to its Pre-Existing IP. “Pre-Existing IP” under this subsection shall mean Faebl IP and all other pre-existing Intellectual Property, information, data, software, tools, code, and other materials developed by or for Faebl prior to the commencement of the Services or developed by Faebl independently and outside the scope of the Services provided hereunder.
Use of Deliverables. Notwithstanding the foregoing subsections, Faebl reserves the right, and Client hereby assigns to Faebl, a limited, royalty-free, irrevocable, non-exclusive, perpetual license, to use the Final Deliverables for competitions, publications, marketing, promotional materials, and public relation/press purposes, and on Faebl’s website and social media. Client further agrees to permit the Faebl to use Client’s name and logo for such aforementioned purposes.
Confidential Information. Each party agrees that any confidential and proprietary information, materials, and Intellectual Property to which it gains access by virtue of the Services provided in connection with this Agreement are confidential and proprietary to the disclosing party, except as otherwise provided for herein or in a Scope of Work. “Confidential Information” means all information (whether in written, oral, electronic, or visual form), which is of a non-public, proprietary, or confidential nature, disclosed by such party (“Disclosing Party”) or its affiliates or authorized representatives to the other party (“Receiving Party”), including, but not limited to, proprietary, technical, developmental, operating, financial, performance, cost, know-how, marketing, engineering, operational, economic, legal, informational, data, process, and prospect information; trade secrets, intellectual property, inventions, copyrights, patents, patent applications; contracts, marketing materials and strategies, customer lists (including the names, addresses, telephone numbers, and account numbers of the customers, customer preferences, and all other information on the customer maintained by a party); software programs; and all samples, models, ideas, and prototypes containing or disclosing such information, of any nature whatsoever relating to the future, present, or past business operation, plans, or assets of the Disclosing Party. Confidential Information shall also include the terms and conditions of this Agreement.
Disclosure and Use of Confidential Information. Receiving Party will not, without prior written consent from Disclosing Party, disclose to any individual or entity any such Confidential Information, and will use such Confidential Information only as may be reasonably necessary to perform its duties under this Agreement. Confidential Information disclosed to Receiving Party under this Agreement shall be treated with the same degree of care (provided that such is at least a reasonable degree of care) to avoid disclosure to third parties as Receiving Party normally uses to protect its own confidential or proprietary information. Receiving Party shall ensure that its officers, employees, agents and representatives who need to have access to Confidential Information sign, or have signed, a non-use and non-disclosure agreement in content substantially similar to the provisions hereof prior to any disclosure of Confidential Information to such persons. Without limiting the generality of the foregoing:
Receiving party shall disclose Confidential information only to those of the Receiving Party’s authorized representatives, advisors, and/or agents who need access to such Confidential Information for purposes in connection with this Agreement and to no one else. Receiving Party agrees to be responsible for any breach of this Agreement by any of its authorized representatives, advisors, and agents.
Receiving Party shall assure that all persons who receive any of the Confidential Information from it will abide by the terms and conditions of this Agreement as if such persons were parties hereto.
iii. Receiving Party acknowledges that any unauthorized disclosure or use of any Confidential Information shall be considered a material breach of this Agreement and may result in irreparable harm to Disclosing Party. In addition to the right to recover monetary damages for such a breach, Disclosing Party shall have the right to seek injunctive relief from a court of competent jurisdiction.
Permitted Disclosures. There shall be no liability for breach of the restrictions contained in this section on use and disclosure of Confidential Information: (i) if such information was already in the public domain or became publicly available through no breach of this Agreement by the Receiving Party; (ii) if the information was rightfully in the Receiving Party’s possession without obligation of confidence prior to receipt from the Disclosing Party or if the Receiving Party lawfully obtained said information from a third party who was under no obligation of confidence; (iii) if such information was independently developed by the Receiving Party without reference to, or use of the Disclosing Party’s Confidential Information; or (iv) if such information is disclosed with the prior written consent of the Disclosing Party.
Required Disclosures. Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is required to be disclosed by the Receiving Party to comply with a judicial order or decree, or to comply with applicable law; provided, however, that the Receiving Party agrees to give prior written notice of such disclosure to the Disclosing Party and to take any reasonable and lawful actions available to it to avoid and/or minimize the extent of such disclosure, including, but not limited to, assisting the Disclosing Party in obtaining a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for purposes for which the law or regulation required, or for which the order or decree was issued.
Return of Confidential Information. All Confidential Information provided to the Receiving Party remains the property of Disclosing Party and, to the extent it is within Receiving Party’s ability to do so, all such information will be returned by Receiving Party to Disclosing Party upon termination of this Agreement within a reasonable time and upon written demand by Disclosing Party. Receiving Party shall not make or retain any copies, excerpts, summaries, or other reproductions, except as required for performance of this Agreement, provided, however, that Receiving Party may maintain, as confidential, an archival copy of Confidential Information to the extent it is required to maintain a record of the transactions under this Agreement or at law.
Notice of Unauthorized Disclosure. The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party.
No Solicitation. The parties mutually acknowledge that each party’s respective employees are valuable assets of each party’s company and an employee’s recruitment and training is a costly and time-consuming endeavor. Accordingly, for the entire Term of this Agreement and a period of one (1) year following the termination of this Agreement, including any extensions thereto, a party hereto shall not directly solicit for employment any employees of the other party assigned to perform under this Agreement.
Termination for Breach. At any time during the Term of this Agreement, either party may terminate this Agreement and any Scope(s) of Work for a material breach of this Agreement or any Scope of Work by the other party if such breach is not cured within thirty (30) days after written notice by the non-breaching party identifying the breach, except that either party may terminate this Agreement immediately upon written notice to the other party in the event of the other party’s breach of its confidentiality obligation or the non-breaching party’s proprietary rights. Notwithstanding the foregoing, such termination shall not relieve the terminated party in breach from liability for the performance of its obligations prior to such termination, and termination by a party shall be in addition to all other rights and remedies the terminating party may have available to it under this Agreement or at law or in equity.
Termination for Insolvency or Bankruptcy Either party may immediately terminate this Agreement and any Scope(s) of Work by giving written notice to the other party in the event of (i) the liquidation or insolvency of the other party; (ii) the appointment of a receiver or similar officer for the other party; (iii) an assignment by the other party for the benefit of creditors; or (iv) the filing of a petition in bankruptcy by or against the other party. Notwithstanding the foregoing, such termination shall not relieve the terminated party from liability for the performance of its obligations prior to such termination, and termination by a party shall be in addition to all other rights and remedies the terminating party may have available to it under this Agreement or at law or in equity.
Termination by Faebl. In the event Client has been substantively unresponsive to Faebl communications for a period of ninety (90) days, at Faebl’s sole discretion, and Faebl believes in good faith it is unable to complete the Services under a duly executed Scope of Work as a result thereof, Faebl may, in its sole discretion, cease (with no obligation to resume) all work relating to the Services by providing Client notice of termination in writing. Notwithstanding the foregoing, such termination shall not relieve Client from liability for the performance of its obligations prior to such termination, and termination by Faebl shall be in addition to all other rights and remedies Faebl may have available to it under this Agreement or at law or in equity.
Warranties and Limitations.
Permissions and Release. Client agrees to indemnify, defend, and hold Faebl harmless from and against any and all claims, costs, and expenses, including reasonable attorneys’ fees and costs, due to materials, content, or branding included in the Services, which were at the request of and provided by Client for which no copyright permission or privacy release was obtained, or for any instances or uses that exceed the uses allowed pursuant to a permission or release.
Limited Warranty. Faebl warrants that the Services will be rendered with best efforts in a competent, professional manner and shall perform substantially in accordance with the description and project specifications in the applicable Scope(s) of Work. Faebl does not warrant and specifically disclaims any representations that any Services rendered will be uninterrupted or error-free. Faebl does not guarantee the success of any marketing campaign or strategy launched pursuant to this Agreement. Nothing contained herein shall be construed to mean that Faebl is responsible in any way for the content of Client’s website. Client is entirely responsible for such content and all obligations with respect to Client’s customers or potential customers. Except as expressly set forth herein, Faebl DISCLAIMS ALL OTHER EXPRESS WARRANTIES AND ALL WARRANTIES, DUTIES, AND OBLIGATIONS IMPLIED OR IMPOSED BY LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. Faebl’S LIMITED WARRANTY SET FORTH HEREIN, IN CONJUNCTION WITH THE OTHER LIMITATIONS OF THIS AGREEMENT, IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF Faebl FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES RENDERED.
LIMITATIONS OF LIABILITY. IN NO EVENT WHATSOEVER SHALL Faebl BE LIABLE TO CLIENT UNDER ANY CAUSES OF ACTION FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES BASED UPON LOSS OF PROFITS AND/OR LOSS OF BUSINESS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT OR ANY OTHER CAUSE OF ACTION AND WHETHER OR NOT Faebl IS INFORMED, KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, UNLESS SUCH DAMAGES ARE DUE TO Faebl’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL Faebl BE LIABLE FOR ANY AMOUNTS IN EXCESS OF AMOUNTS ACTUALLY PAID BY CLIENT TO Faebl PURSUANT TO A SCOPE OF WORK FROM WHICH THE CLAIM ARISES. IT IS EXPRESSLY UNDERSTOOD THAT Faebl IS NOT RESPONSIBLE IN ANY MANNER FOR CREATIVE CONTENT PROVIDED BY CLIENT OR ANY OTHER AGENT OF CLIENT AND SHALL NOT BE DEEMED IN BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT BECAUSE OF ANY DEFICIENCIES IN SUCH CONTENT. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT AND NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION.
Third Parties. Faebl makes no warranty or guarantee for any products or services provided by third-party vendors or suppliers (including but not limited to printers, photographers, videographers, or media) for any products or services provided to Client by such third-party vendors or suppliers. Faebl shall endeavor to the best of its knowledge and ability to guard against any loss to Client through failure of suppliers and third-party vendors to properly execute their commitments, but Faebl shall not be held responsible for any failure or delays occasioned on their part absent the gross negligence or intentional misconduct of Faebl. When acting as a spokesperson for Client, including by posting material on Client’s behalf to any social media, Faebl will not be held responsible for the content thereof, including any remarks made about plans, prospects, or future outlooks that constitute forward-looking statements, provided that such statements are authorized by Client. Client hereby agrees to indemnify, defend, and hold Faebl harmless for and against any and all claims involving the
foregoing, including but not limited to, class action lawsuits that may arise at any time before, during, or after the timeframe stipulated in this Agreement
Client Materials. For Client materials housed with Faebl, Faebl assumes no liability unless due to gross negligence and only to the extent Faebl’s insurance covers any loss. Faebl shall hold insurance coverage for Professional Liability Errors and Omissions in an amount not less than $100,000 per occurrence and $250,000 in annual aggregate.
Indemnification by Client. Client shall defend, indemnify, and hold harmless Faebl, its affiliates, and its respective directors, officers, agents, and employees, from and against all claims, judgments, damages, liabilities, settlements, losses, costs, expenses, and recoveries for any amounts claimed due, including penalties, interest, and reasonable attorneys’ fees and disbursements, to the fullest extent permitted by applicable law, for which Faebl is held legally responsible, arising from or relating to: (i) Client’s failure or refusal to perform Client’s duties and responsibilities under this Agreement; (ii) Client’s failure or refusal to comply with any federal, state, or local law; (iii) any inaccuracy in or breach of any of the representations or warranties of Client contained in this Agreement; (iv) any materials Client provides to Faebl in connection with this Agreement; (v) Client’s use of any materials created hereunder that is not in accordance with any applicable restrictions, limitations, or obligations that Faebl has communicated to Client; or (vi) any unauthorized use by Client of Faebl IP or Faebl Confidential Information. This indemnification provision, and all other indemnification provisions of this Agreement, shall survive the termination of this Agreement.
Indemnification by Faebl. Faebl shall defend, indemnify, and hold harmless Client, its affiliates, and its respective directors, officers, agents, and employees, from and against all claims, judgments, damages, liabilities, settlements, losses, costs, expenses, and recoveries for any amounts claimed due, including penalties, interest, and reasonable attorneys’ fees and disbursements, to the fullest extent permitted by applicable law, for which Client is held legally responsible, arising from or relating to: (i) any act or omission of Faebl related to Services performed for Client under this Agreement; (ii) any unauthorized use by Faebl of Client IP or Client Confidential Information; or (iii) any breach of any representation, warranty, or covenant of Faebl contained in this Agreement. Faebl’s indemnification obligations under this section shall be subject to the limitation on liability set forth above in Section 15 of this Agreement. This indemnification provision, and all other indemnification provisions of this Agreement, shall survive the termination of this Agreement.
Independent Contractor. Nothing in this Agreement shall be construed to make the parties hereto partners, joint venturers, representatives, or agents of each other, nor shall either party so represent to any third person. The parties hereunder are acting in performance of this Agreement as independent contractors engaged in the operation of their own respective businesses. A party’s employees, agents, or representatives are not employees or agents of the other party and are not entitled to any of the other party’s benefits. Neither party shall be responsible for payment of the other party’s workers’ compensation, disability benefits, or unemployment insurance, nor shall it be responsible for withholding or paying employment related taxes for the other party or its employees. Notwithstanding the above, as provided for herein and in any duly executed Scope of Work, Faebl is authorized to act as Client’s agent in purchasing the materials and services required to perform work on Client’s behalf.
Governing Law; Dispute Resolution; Venue; Jurisdiction. This Agreement, including any subsequent duly executed Scopes of Work, shall be governed by and construed in accordance with the laws of the State of California, without reference to its conflict of law rules or principles. If the parties are unable to informally resolve any dispute or controversy arising out of or relating to this Agreement, including any subsequent duly executed Scopes of Work, such dispute shall be resolved as follows, and the parties agree to jurisdiction and venue as follows:
Meet and Confer. In the event of a Dispute among the parties hereto, a party may give written notice to all other parties setting forth the nature of such Dispute (the “Dispute Notice”). The parties shall meet and confer to discuss the Dispute in good faith within ten (10) days following the other parties’ receipt of the Dispute Notice in an attempt to resolve the Dispute. All representatives shall meet at such date(s) and time(s) as are mutually convenient to the representatives of each participant within the “Meet and Confer Period” (as defined herein below).
Mediation. If the parties are unable to resolve the Dispute within thirty (30) days following the date of receipt of the Dispute Notice by the other parties (the “Meet and Confer Period”), then the parties shall attempt in good faith to settle the Dispute through nonbinding mediation under the then current mediation rules of ADR Services, Inc. (“ADR Services”). A single disinterested third-party mediator located in Los Angeles; California shall be selected by ADR Services in accordance with its then current mediation rules. The parties to the Dispute shall share the expenses of the mediator and the other costs of mediation on a pro rata basis.
Exclusions for Mediation. Those matters that require a party to seek injunctive or other equitable relief to mitigate further damage may be excluded from the mediation provisions as set forth herein. In such matters, the parties to this Agreement consent to the exclusive jurisdiction of the state and federal courts sitting in Los Angeles County, California, which shall have the exclusive jurisdiction regarding the dispute and to whose jurisdiction the parties irrevocably submit.
Enforcement. If a party to this Agreement fails to meditation as required and does not fall within any of the exclusions set forth above, the party shall be deemed to have breached this Agreement and, as a result of the violation of this Agreement, the aggrieved party may file suit in a court of law in accordance with the jurisdictional provisions provided herein, and be entitled to full and complete remedies available to it under the applicable California law.
Recovery of Attorney’s Fees and Costs. The prevailing party in an arbitration or judicial proceeding shall be entitled to recover its costs and reasonable attorneys’ fees from the non-prevailing party in any action brought to enforce this Agreement.
Non-Disparagement. The parties agree they will not make any negative or disparaging comments regarding the other on any social media platforms, in any public forum, or in any other manner, including comments regarding the other party’s managers, directors, board members, officers, employees, volunteers, affiliates, attorneys, consultants, and agents, and their respective heirs, executors, administrators, successors and assigns, if applicable. The parties further agree they will not make any statement or take any action, directly or indirectly, that harms, or could harm, the other party’s business interests, reputation, or good will.
Subcontracting; Right to Subcontract. Faebl may, in its sole discretion, contract for the services of independent programmers, consultants, or other individuals to perform its obligations hereunder to enable Faebl to timely achieve its performance requirements under this Agreement. In the event that Faebl contracts for the services of independent programmers, consultants, or other individuals to perform its obligations hereunder, any and all subcontractors are bound by the same confidentiality terms set forth in Section 12, above.
Force Majeure. Any delay or failure of Faebl in performing its required obligations hereunder shall be excused if and to the extent such delay or failure is caused by a Force Majeure event. A “Force Majeure event” means an event due to any cause or causes beyond the reasonable control of Faebl and shall include, but not limited to, acts of God, strike, labor dispute, fire, storm, flood, windstorm, earthquake, unusually severe weather, sabotage, embargo, terrorism, energy shortage, accidents or delay in transportation, explosion, riot, war, or court injunction or order. In the event of a Force Majeure event, Faebl shall receive an equitable adjustment extending Faebl’s time for performance for such Services sufficient to overcome the effects of any delay. The time Faebl has to perform its Services will be extended on a day for day basis so long as Force Majeure is in effect.
Further Assurances. From time to time, each party shall execute and deliver such instruments as may be reasonably necessary to carry out the purposes and intent of this Agreement.
Severability. In the event any provision of this Agreement shall be found unenforceable by an arbitrator or a court of competent jurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended that the parties shall receive the benefits contemplated herein to the fullest extent permitted by law. If a modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be deemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.
Survivability. The provisions of Sections 4, 11, 12, 13, 14, 15, 16, 19, and 20 as well as any other terms of this Agreement that expressly extend or by their nature should extend beyond termination or expiration of this Agreement, shall survive and continue in full force and effect after any termination or expiration of this Agreement.
Waivers. The failure of a party to enforce the provisions of this Agreement shall not be construed as a waiver of any provision or the right of such party thereafter to enforce each and every provision of this Agreement.
Assignment. Faebl may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Faebl, except as provided in Sections 21. Consent may be withheld in Client’s sole and absolute discretion. Client may assign any of its rights to or delegate any of its duties under this Agreement at any time, provided the assignee is financially solvent. Any attempted assignment or delegation in violation of this provision is void. As used in this provision, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance, or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.
Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute one instrument.
Entire Agreement; Modification. This Agreement and any subsequent duly executed Scopes of Work, including attachments, contain all of the terms and conditions made between the parties with respect to the Services to be provided and contain the entire agreement between the parties. This Agreement may not be modified except by amendment reduced to writing and signed by both parties.
THE PARTIES ACKNOWLEDGE THEY HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND HAVE CAUSED THEIR AUTHORIZED REPRESENTATIVES TO DULY EXECUTE THIS AGREEMENT, EFFECTIVE AS OF THE DAY AND YEAR FIRST ABOVE MENTIONED.
The Client Marketing and Advertising Standards and Conditions
As set forth in Section 2(a) of the Master Services Agreement (“Agreement”) of which this document is an Exhibit, Client and Faebl agree to act in accordance with the standards and conditions set forth below.
Contracts. Faebl is not authorized to sign or otherwise enter into any contractual relationship with any individual or third-party vendor on behalf of Client.
Compensation for Referral of Clients. Faebl shall not offer nor promise nor pay any compensation to clients or patients, health care providers, health care provider’s office staff, friends or family members of patients or clients, human resources staff, supervisors, or any other persons who refer or are in a position to refer clients or laboratory services to Client. “Compensation” includes anything of value, such as but not limited to, financial remuneration, discounts, gift cards, free services (including transportation), and promotional events.
Evaluation and Acceptance of Referrals; Outcomes. Faebl shall have no authority to evaluate or accept referrals on behalf of Client and shall refrain at all times from engaging in such activities. All such evaluations, acceptances, recommendations, and assessments shall be made solely by appropriate staff members of Client.
Reporting of Conflict and Non-Compliance. Faebl shall report to Client any conflicts or compliance concerns that arise in the course of Faebl’s provision of the Services under the Agreement.