PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT BUTTON,” EXECUTING AN ORDER FORM WITH COMPANY, OR ACCESSING OR USING ANY OF THE PROFESSIONAL SERVICES, CUSTOMER REPRESENTS THAT (1) CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT USE THE PROFESSIONAL SERVICES.
1. Definitions
“Agreement” means this Master Services Agreement, the applicable Order Form(s), and all materials and other documents referred to in this Master Services Agreement.
“Authorized Payment Method” means a current, valid, payment method accepted by us, as may be updated from time to time.
“Content” means all information, in whatever form, including articles, case studies, images, stories, creative advertising, commentary, video, music, photographs, logos, trademarks, custom embedded objects, and all other forms of media. Customer Data is included in, and a subset of, Customer’s Content.
“Customer Data” means name, email address, phone number, online user name, telephone number, and similar information provided by you or submitted by visitors to your website, landing pages, or other marketing forms.
“Deliverables” means all documents, work product, and other materials that are delivered to Customer hereunder or prepared by or on behalf of Company in the course of performing the Services, including any items identified as such in an Order.
“Intellectual Property” means all discoveries, inventions, improvements, developments, procedures, processes, formulations, know-how, trade secrets, formulae, trademarks, service marks, trade dress, designs, images and photographs, logos, packaging, proprietary information, technical information, techniques, works of authorship, drawings, models, manuals, systems, and other intellectual property, whether or not patentable or copyrightable or otherwise registerable, and all rights and applications or registrations derived or derivable therefrom.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights; and (f) other proprietary rights of every kind and nature.
“Metadata,” “Company”, “we,” “us,” or “our” means Metadata, Inc.
“Order Form/Order” means any form that describes the Professional Services ordered by Customer, as well as the fees and schedule for such Professional Services. An Order Form may be in the form of a standard order form, quote, online subscription process, proposal, or other similar documentation.
“Professional Services” means professional marketing and related services provided by Company to Customer as described in any Order Form, including services relating to, but not limited to, campaign management, marketing efficiency management, marketing planning and execution, creative asset creation, animated ads, ad copywriting, video production, and Content strategy working sessions.
“Services Term” means the initial term of your purchase of the Professional Services, as specified on your Order Form, and each subsequent renewal term (if any).
“You,” “your,” or “Customer” means the person or entity using or receiving the Professional Services and identified in the applicable Order Form as the customer.
2. Services
2.1 Professional Services. Company shall provide Professional Services for Client pursuant to the terms and conditions of this Agreement and as more specifically described in an Order Form. The Order Form will include: (a) a description of the Professional Services; and (b) the fees applicable for the performance of the Professional Services.
2.2 Native Accounts. As part of such activities, if directed by Customer in writing, Company may set up or, if already set up, access advertising channel accounts, including entering into certain agreements (e.g., channel user agreements), and other services through which campaigns will be conducted. Company will provide Customer with the credentials for all newly created accounts, if applicable. If directed by Customer in writing, Customer also authorizes Company to initiate ad-campaigns on such accounts, provided that Company is not authorized to exceed any budget communicated to Company by Customer for such ad-campaigns.
2.3 Campaign Costs. Charges for campaigns conducted under such accounts will be paid for by Customer’s Authorized Payment Method or other method required by the service. The campaign spend may include operational fees such as charges from advertising networks.
2.4 Third-Party Content. Company may, at Customer’s direction, utilize third party service providers to facilitate specified Content creation. Customer expressly understands and agrees that as between Company and Customer, all third-party Content is provided “AS-IS” and at Customer’s sole risk.
2.5 Metadata Software Platform. As applicable, Customer’s use of Company’s software tools is subject to a separate Terms of Use available at: https://metadata.io/terms-of-use/.
3. Fees and Payments
3.1 Fees. Fees for the Professional Services are due in accordance with the billing frequency and terms stated in the Order Form. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement.
3.2 Expenses. Customer will reimburse Company for reasonable expenses that are incurred by Company in performing the Services, provided that such expenses are pre-approved by Customer in writing.
3.3 Fee Adjustments at Renewal. Upon renewal, we may increase your fees by 7% or up to our then-current list price.
3.4 Payment of Fees. We will invoice you in accordance with the relevant Order Form. Unless otherwise stated in an Order Form, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice.
3.5 Payment Information. You will keep your Authorized Payment Method, contact information, and billing information up to date for the payment of incurred and recurring fees, as applicable.
3.6 Sales Tax. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Company’s net income). In the event Company pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Company.
3.7 Late Payments. For late payments, including where Customer’s Authorized Payment Method fails, Company may impose a charge equal to the greater of one and one-half percent (1 ½%) or the maximum rate permitted by law, whichever is lower, per month until payment is made. Customer will be responsible for reimbursing Company for any costs incurred by Company collecting overdue fees, including bank charges, processing fees, attorneys’ fees, collection agency fees, and related costs.
4. Term; Termination; Suspension
4.1 Term and Renewal. Your initial Services Term will be specified in your Order Form, and, unless otherwise specified in your Order Form, your Order will automatically renew for the shorter of the Services Term, or one year.
4.2 Notice of Non-Renewal. Unless otherwise specified in your Order Form, to prevent renewal of the Professional Services, you or we must give written notice of non-renewal. The deadline for sending this notice is thirty (30) days prior to renewal.
4.3 Suspension. In the event of any breach of this Agreement by Customer (including non-payment of fees), without limiting Company’s other rights and remedies, Company may immediately, with written notice (email is sufficient), suspend its provision of the Professional Services.
4.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Professional Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Services Term.
4.5 Effect of Termination or Expiration. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Professional Services after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Services Term. Fees are otherwise non-refundable.
5. Intellectual Property; Content; Work Made for Hire
5.1 Customer’s Proprietary Rights. Content provided by Customer, including all Customer Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Content not expressly granted to Company in this Agreement are reserved by Customer. Customer hereby grants to Company a revocable, non-exclusive, worldwide, royalty-free, and fully paid up right and license to use, distribute, transmit, publish, and display Content as necessary to perform the Professional Services and as otherwise permitted by this Agreement.
5.2 Content Rights. Customer represents that Customer has all legal rights, including under applicable data privacy laws, needed for Customer to grant Company the license to use the Content as described in this Agreement. Customer is solely responsible for all obligations with respect to the accuracy, quality, and legality of its Content. Company shall have the right, in its sole discretion, to remove any Content if the Content violates the Agreement or applicable law.
5.3 Work Made for Hire. Subject to Customer’s payment of the fees, Customer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Company agrees, and will cause its employees and contractors to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Customer. To the extent that any of the Deliverables do not constitute a “work made for hire,” Company hereby irrevocably assigns, and shall cause its employees and contractors to irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. Company shall cause its employees and contractors to irrevocably waive, to the extent permitted by applicable law, any and all claims its employees or contractors may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
Upon the reasonable request of Customer, Company shall, and shall cause its employees and contractors to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Customer to prosecute, register, perfect, or record its Intellectual Property Rights in or to any Deliverables.
5.4 Company’s Proprietary Rights. Notwithstanding the foregoing, Customer acknowledges and agrees that Company has developed its own processes and know how that contain and will contain valuable trade secrets and/or proprietary and confidential information (“Background Intellectual Property”) and that any right, title and interest to the Background Intellectual Property shall remain with Company, including any patents, copyrights, trademarks, trade secrets, methods of processing, design, documentation and structure of individual programs and their interaction and programming techniques employed therein. Nothing in this Agreement shall be construed to vest in Customer any ownership interest in the Background Intellectual Property.
5.5 Benchmarking; Analytics; Promotional Purposes. Metadata may use usage logs and results, in an aggregated and anonymized form, to: (i) improve the Professional Services; (ii) provide analytics and benchmarking; and (iii) generate and disclose statistics regarding the Professional Services. Metadata may use Deliverables created for Customer as part of its portfolio for advertising and promotional purposes.
5.6 Retention of Content. Although Company performs regular routine backups of data, Customer is primarily responsible for all data that Customer has transferred or that relates to any activity Customer has undertaken using the Professional Services. Company is not obligated to back up any Content; the Customer is solely responsible for creating backup copies of any Content at Customer’s sole cost and expense. Unless required by applicable law, upon a termination of this Agreement, Company shall not retain any of the Content.
6. Confidentiality
6.1. Confidential Information. “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”), whether provided prior to or after execution of this Agreement, orally, or in writing, that: (a) is marked or otherwise identified in writing as confidential or proprietary, (b) is provided under circumstances indicating that it is confidential or proprietary by Disclosing Party, or (c) should reasonably be understood by Receiving Party to be confidential or proprietary because of the nature of the information or material itself. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present, or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement.
6.2 Exceptions to Confidentiality. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party by individuals that did not have access to the Confidential Information.
6.3 Mutual Confidentiality. The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party confidentiality obligations at least as restrictive as those contained in this Agreement.
6.4 Compelled Disclosure. Notwithstanding the foregoing, Receiving Party may disclose certain Confidential Information of Disclosing Party if required by valid order of a court or a governmental body with jurisdiction, provided that Receiving Party provides Disclosing Party with prompt, prior written notice of such order and disclosure and makes a reasonable effort to assist Disclosing Party, at Disclosing Party’s discretion and expense, in obtaining a protective order preventing or limiting the disclosure.
6.5 Term of Confidentiality. The obligations of the parties regarding the Confidential Information that constitutes trade secrets shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the term of this Agreement and for three (3) years thereafter.
6.6 Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure of Confidential Information and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or equitable relief.
7. Non-solicitation
7.1 Agreement not to solicit. During the term of this Agreement and for a period of one (1) year after the expiration or termination of the Services Term or the Term of any Order for Metadata software, whichever occurs later, Customer agrees not to directly or indirectly solicit, induce, recruit, or encourage any employee, contractor, or consultant (“Engaged Professional”) of Company to leave their employment or engagement with Company for the purpose of providing services to Customer or any of its affiliates or for any other purpose that would be detrimental to the interests of Company.
7.2 Engaged Professional Buyout. Notwithstanding the terms of section 7.1, Customer shall have the right to hire or engage an Engaged Professional within the non-solicitation period without violating this Agreement if Customer: (a) executes a new Order in an annualized fee amount not less than its existing software and Professional Services Order(s) and a term of at least two (2) years; and (b) pays Metadata a recruiting replacement fee equal to fifty percent (50%) of the Engaged Professional’s on-target annualized compensation, including base pay and any incentive compensation.
7.3 Liquidated Damages. In the event of a breach of this provision, Customer shall pay Company liquidated damages in the amount of two (2) times the Engaged Professional’s on-target annualized compensation, including base pay and any incentive compensation, as well as reimburse Company for any costs or expenses incurred in enforcing this provision, including reasonable attorney’s fees.
8. Disputes
Choice of Law; Venue. This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, excluding its conflicts of law rules. The parties expressly agree that any controversy or claim arising out of or relating to this Agreement shall exclusively be brought in the federal or state courts located in or with jurisdiction over San Francisco, California.
9. Warranties and Disclaimers
9.1 Metadata Performance Warranty. Company represents and warrants that: (a) it will provide the Professional Services in a professional and competent manner using properly qualified and trained employees; and (b) will fully comply with all applicable laws, rules, and regulations.
9.2 Disclaimer of Warranties. PROFESSIONAL SERVICES PROVIDED BY COMPANY, INCLUDING USE AND RESULTS, ARE PROVIDED “AS IS.” COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES, OR ABILITY TO CONVERT THE RESPONSES INTO SALES. COMPANY DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. COMPANY MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET LAUNCH DATES.
10. Limitations of Liability
10.1 No Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE PROFESSIONAL SERVICES DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING THE ACT THAT GAVE RISE TO THE LIABILITY.
10.3 Exclusions. THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO : (A) CUSTOMER’S LIABILITY FOR PAYMENT OF FEES; (B) EITHER PARTY’S VIOLATION OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS OR ITS CONFIDENTIALITY OBLIGATIONS; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS; OR (D) EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
11. Indemnification
11.1 Indemnification by Metadata. Metadata shall defend, indemnify, and hold Customer and its officers, members, directors, employees, agents, and representatives (collectively, “Customer Indemnitees”) harmless from and against all costs, claims, demands, losses, expenses and liabilities of any nature whatsoever, including reasonable attorneys’ fees (collectively, “Losses”) incurred or suffered by such Customer Indemnitees to the extent any such Losses arise out of, or in connection with, any claim, demand, or cause of action initiated by a third party (each, a “Claim”) based upon or arising out of: (a) Metadata’s gross negligence or willful misconduct; (b) personal injury or damage to tangible personal property caused by Metadata; or (c) any alleged infringement or other violation during the provision of the Professional Services of a third party’s Intellectual Property Rights (an “Infringement Claim”). Metadata’s indemnification obligations for an Infringement Claim is mitigated to the extent that the alleged infringement arises from any data, materials, or instruction provided by or modified by Customer.
If any portion of the Professional Services become, or in Company’s opinion is likely to become, the subject of such claim of infringement, Company may, at Company’s option and expense: (a) procure for Customer the right to continue using the Deliverable; (b) replace the Deliverable with a non-infringing Deliverable; or (c) modify the Deliverable so that it becomes non-infringing.
11.2 Indemnification by Customer. Customer shall defend, indemnify and hold Metadata and its officers, members, directors, employees, agents and representatives (collectively, “Metadata Indemnitees”) harmless from and against all Losses incurred or suffered by such Metadata Indemnitees to the extent any such Losses arise out of, or in connection with, any Claim based upon or arising out of: (a) the gross negligence or willful misconduct of Customer; (b) any alleged infringement or other violation of the patent, copyright, trade secret or other proprietary right (an “Infringement Claim”) concerning Content provided by Customer; (c) an allegation that any Customer Data or Metadata’s use thereof, including any Claim that such Customer Data or transmittal, storage or other use thereof violates any privacy or other rights.
11.3 Exclusive Remedy. This section states the sole and exclusive remedy of the indemnified party and the entire liability of the indemnifying party, or any of the officers, directors, employees, shareholders, contractors, or representatives of the foregoing, for the claims and actions described herein.
11.4 Indemnification Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. Notwithstanding the foregoing, the indemnifying party shall be relieved from its indemnification obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim.
12. Publicity
Company will be entitled to display Customer’s corporate name and logo on Company’s website and marketing materials and to identify Customer as a Company customer.
13. Miscellaneous
13.1 Entire Agreement. This Agreement (including the Order Form) constitutes the entire agreement between Customer and Company regarding the provision of the Professional Services and supersedes all other proposals and agreements, whether electronic, oral, or written, between us. Additional or different terms proposed by you, including any contained in your purchase order, acceptance, or website are void.
13.2 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
13.3 Amendment; No Waiver. We may modify any part of the Agreement by posting a revised version at https://metadata.io/master-services-agreement/. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email or in-app notification.
If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your Order will continue to be governed by the existing terms of your Agreement until your next renewal date, after which the current terms posted at https://metadata.io/master-services-agreement/ will apply. However, if we can no longer reasonably provide the Professional Services to you under the terms prior to modification (for example, if the modifications are required by law), then the Agreement and/or affected Professional Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Professional Services after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
13.4 Relationship. No joint venture, partnership, employment, or agency relationship exists between Customer and Company as a result of this Agreement or provision of the Professional Services.
13.5 Section Titles. The section titles in this Agreement are for convenience and have no legal effect.
13.6 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
13.7 Assignment. This Agreement may not be assigned by either party without the other’s express written consent, provided that either party shall be permitted to assign this Agreement without such consent to an acquirer of that party’s business relating to this Agreement effected by merger, acquisition, corporate reorganization, or sale of all, or substantially all, of its assets.
13.8 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
13.9 Audit Rights. Upon either party’s request, the other party will furnish any documentation, substantiation or releases reasonably necessary to verify that party’s compliance with this Agreement.
13.10 Notices. Notices sent pursuant to this Agreement will be deemed effective upon verifiable receipt. Notices to Metadata must be sent to 1754 Technology Drive, Suite 212, San Jose, CA 95110 with a copy to legal@metadata.io. Notices to Customer will be sent to the physical or email address provided on the applicable Order Form or as updated in Customer’s account.
13.11 Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
13.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
