Master Services Agreement

This agreement (“Agreement”) is entered into by and between Rocket Fuel Labs LLC (“Company” or “Rocket Fuel Labs” or “RFL”) and the entity listed on the statement of work (“Client”) and is effective as of the date of the signature of their statement of work (“Effective Date”). Rocket Fuel Labs may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them. If the update is material, we will notify you prior to such update.

1. Services; Additional Services. Client hereby engages Rocket Fuel Labs to provide the services and deliverables specifically described in one or more statements of work (each an “SOW”). When executed by both parties, each SOW shall be deemed attached hereto and incorporated herein by this reference. Rocket Fuel Labs will perform the services set forth in each SOW in a workmanlike manner consistent with generally accepted industry standards and in accordance with any delivery dates and timelines specified in the SOW; provided, however, Rocket Fuel Labs will not be in breach of any SOW or this Agreement due to any delay in its performance resulting from a delay on the part of Client in providing Rocket Fuel Labs with any required approvals or other information set forth in the SOW or any delay generally affecting the Company and/or clients business or industry in general, such as delay related to the COVID-19 pandemic. In the event that Client requests any revisions, additions or modifications to the services or deliverables described in a SOW, the parties will negotiate in good faith with respect to the terms, conditions and compensation for the same and, if agreed upon, will set them in forth in a duly-executed amendment to the SOW.

2. Term. (a) This Agreement shall commence as of the Effective Date and shall continue thereafter until all SOWs have expired or been terminated pursuant to each SOW’s terms, unless earlier terminated in accordance with the terms herein. In order to immediately proceed with a subsequent SOW, the Parties must execute such subsequent SOW no less than thirty (30) days prior to the expiration of the then current SOW. Client acknowledges and agrees that failure to execute the subsequent SOW on such a timeline will result in RFL allocating its resources to other activities and the start date for the subsequent SOW being undetermined.  (b) Either party may terminate this Agreement or any SOW for convenience upon sixty (60) days prior written notice to the other party. (c) Either party will have the right to terminate this Agreement or any SOW upon prior written notice to the other party in the event that the other party (i) is in material breach of this Agreement or SOW and (ii) fails to cure such breach within thirty (30) days after receipt of written notice from the nonbreaching party specifying the nature of the breach. A termination of this Agreement hereunder shall cause the termination of each SOW then in effect. (d) This Agreement may be terminated immediately by either party if (i) any petition is filed by or against the other party under any bankruptcy law or any other applicable insolvency or other similar law and such petition is not dismissed within twenty (20) days after the date of such filing, (ii) the other party becomes insolvent or transfers property to defraud creditors, (iii) the other party makes an assignment for the benefit of creditors, or (iv) a receiver is appointed for any of the assets of that party.

3. Payment of Fees. Client agrees to pay to Rocket Fuel Labs the fees as set forth in the applicable SOW. Unless otherwise stated in the applicable SOW, Client will be billed on or about the first (1st) day of each calendar month for fees accrued during the prior calendar month, with payment to be due on net fifteen (15) day terms (i.e., all payments are due 15 days from the date of invoice). If the applicable SOW commences during the middle of any calendar month, then the same process will apply except that the fees will be prorated for the first and last months of the applicable SOW. Timeliness with respect to payment is of the essence of this agreement. If any payment required to be paid by Client to Rocket Fuel Labs is not paid within five (5) days of the date on which it is due, a late charge equal to five percent (5%) of the late payment shall be due from Client to Rocket Fuel Labs to compensate Rocket Fuel Labs for the additional administrative work caused by such non-payment and to compensate Rocket Fuel Labs for the loss of use of such defaulted payment. In the event that Client is in arrears for fifteen (15) days for any invoiced amounts past due, Rocket Fuel Labs reserves the right to suspend any and all work on Client’s account until payment, deemed satisfactory to Rocket Fuel Labs, is made by Client to Rocket Fuel Labs. Client acknowledges and agrees that in all circumstances, fees set forth in the applicable SOW will continue to accrue until the Termination Date, including when Client instructs Rocket Fuel Labs to cease services prior to the Termination Date. Client acknowledges and agrees to pay a three percent (3%) processing fee for all payments made via credit card.

4. Confidentiality. Each party agrees to hold any and all Confidential Information (as defined below) in the strictest of confidence and not to disclose any Confidential Information to any third party without the prior written consent of the other party. Each party expressly acknowledges that the Confidential Information constitutes confidential, valuable, special and unique assets of the other party and belongs to and shall remain the property of the other party. Each party shall use Confidential Information solely for the purpose of performance under this Agreement and shall disseminate Confidential Information only to those of its agents or employees requiring access to Confidential Information for purposes of such performance and who are made aware of the confidentiality obligations set forth in this Agreement and agree to be bound thereby. For purposes of this Agreement, “Confidential Information” shall mean any and all confidential, proprietary, trade secret, or non-public information of or about either party, including, but not limited to, its business practices and methods, marketing plans and optimization, know-how, financial data, any and all records, files, reports and documents pertaining to the operations of either party, this Agreement and its terms, information regarding a party’s clients, potential clients, referral sources and potential referral sources, and any and all other analogous information or materials. However, both parties agree that information will not be considered Confidential Information to the extent that such information: (i) is already known to the receiving party free of any confidentiality obligation at the time it is obtained; (ii) is or becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received by the receiving party from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by the receiving party, which can be demonstrated by written record. Each party agrees that if it is required by subpoena, court order, judicial decree, or other legal requirement to disclose any Confidential Information, the party required to make such a disclosure shall endeavor to give reasonable, advance notice to the other party to enable it to contest such order or requirement. This Section shall survive expiration or termination of this agreement. The receiving party to Confidential Information agrees that its obligations hereunder are necessary and reasonable in order to protect the disclosing party and the disclosing party’s business and expressly agrees that monetary damages would be inadequate to compensate the disclosing party for any breach by the receiving party of this Section. The receiving party agrees that any violation or threatened violation of this Section may cause irreparable injury to the disclosing party, entitling the disclosing party to apply for ex parte injunctive relief (or, if required by the court, to apply for same with notice to the other party), without posting bond, in addition to all other remedies available to it at law and equity.

5. Ownership of Work Product. All deliverables shall be considered works-made-for-hire and shall be the sole and exclusive property of Client, to the extent produced and paid for hereunder. Deliverables includes original design files, if the project is a design project. In the event that any such deliverables are not copyrightable or for any reason are not deemed to be works-made-for-hire, then and in such event, Rocket Fuel Labs hereby assigns all right, title and interest in and to such deliverables to Client and agrees to execute all documents reasonably required to evidence such assignment. Notwithstanding the foregoing: (a) All creative ideas and concepts presented to Client that are rejected by Client and/or do not proceed to final production and use hereunder, including all tangible embodiments thereof, shall remain the sole and exclusive property of Rocket Fuel Labs, including all intellectual property rights therein; (b) The parties acknowledge and agree that the deliverables may incorporate certain of Rocket Fuel Labs proprietary techniques, know-how, methodologies, processes and trade secrets that are not specific to Client and are of general applicability to the services Rocket Fuel Labs provides to other clients (the “Agency Materials”). Client acknowledges and agrees that Rocket Fuel Labs shall retain ownership of the Agency Materials, including but not limited to any intellectual property rights therefor; provided, however, that Rocket Fuel Labs hereby grants to Client an irrevocable and royalty-free license to use the Agency Materials without restriction to the extent included or embodied within the deliverables in order to ensure Client’s full use of such deliverables; and (c) Rocket Fuel Labs may, upon occasion, license materials from third parties for inclusion in the deliverables. In such circumstance: (i) ownership of the licensed material will remain with the licensor at the conclusion of the term of the license; (ii) Rocket Fuel Labs will keep Client informed of all material provisions of the license, including all costs involved, the period of usage, and restrictions on use in various media; (iii) Rocket Fuel Labs will obtain Client’s written consent before including licensed material in a deliverable that will subject Client to additional costs; and (iv) Client agrees to remain bound by, and to comply with, the terms of such license for the duration of same, including following termination of the applicable SOW.

6. Representations and Warranties. (a) Each party represents and warrants that (i) it has all necessary rights to enter into this Agreement, to grant any rights granted herein and to perform fully its obligations as set forth herein; (ii) this Agreement is the legal, valid and binding obligation of the party; and (iii) it will comply with all laws and regulations applicable to its performance hereunder. (b) Rocket Fuel Labs represents and warrants that the use by Client of the services and deliverables will not violate the intellectual, personal or other rights of any third party (subject, however, to the provisions of subsection (c), below). (c) Client represents and warrants that the use by Rocket Fuel Labs of any materials, data or information provided by Client to Rocket Fuel Labs for incorporation into the services or deliverables will not violate the intellectual, personal or other rights of any third party. (d) Client acknowledges and agrees that Internet advertising inherently runs risks of algorithmic updates and changes in search engines and that, accordingly, Rocket Fuel Labs offers no guarantee of present or future placement in any specific search engine and is not responsible for any costs associated with downtime, inventory, sales, updates or changes in any search engine, website or directory.

7. Indemnification. Rocket Fuel Labs shall defend, indemnify and hold Client and its officers, directors, members employees, agents, successors and assigns (“Representatives”) harmless from and against any and all third party demands, liabilities, losses, costs, threatened claims and claims, including reasonable attorney’s fees (collectively “Claims”), asserted against Client and/or its Representatives arising from or relating to: (i) Rocket Fuel Labs breach of any provision of this Agreement, (ii) Rocket Fuel Labs violation of any laws, rules, or regulations applicable to Rocket Fuel Labs services; or (iii) deliverables provided by Rocket Fuel Labs to Client involving any Claims for copyright or trademark infringement, except where any such Claim may arise out of (a) materials or information supplied by Client to Rocket Fuel Labs, or (b) modifications made by Client to deliverables created by Rocket Fuel Labs. Client shall defend, indemnify and hold Rocket Fuel Labs and its Representatives harmless from and against any and all Claims asserted against Rocket Fuel Labs and/or its Representatives arising from or relating to (i) Client’s breach of any provision of this Agreement; (ii) Client’s violation of any laws, rules or regulations applicable to its products or services, (iii) any materials, data or information furnished by Client to Rocket Fuel Labs for use in connection with the services or deliverables, including without limitation, Client’s copyrights or trademarks, and information concerning Client’s products or services, or (iv) any modification by Client to deliverables created by Rocket Fuel Labs.

8. Limited Liability. IN NO EVENT SHALL CLIENT OR ROCKET FUEL LABS BE LIABLE TO EACH OTHER FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT (EXCEPT TO THE EXTENT ARISING OUT OF A THIRD PARTY CLAIM FOR WHICH EITHER PARTY IS OBLIGATED TO INDEMNIFY THE OTHER UNDER SECTION 7, ABOVE), WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Client or Rocket Fuel Labs liability under this Agreement exceed the aggregate dollar amount which Client has paid to Rocket Fuel Labs during the twelve (12) month period preceding the first occurrence of the act or omission giving rise to such liability.

9. Expenses. Client will reimburse Rocket Fuel Labs at cost for actual travel and lodging expenses incurred by Rocket Fuel Labs in providing the Client with services under this agreement. Rocket Fuel Labs will obtain approval prior to incurring such expenses and will use reasonable efforts to limit travel and lodging expenses. Rocket Fuel Labs will provide all copies of receipts with invoice. In addition, Client will reimburse Rocket Fuel Labs for its other out of pocket expenses related to the services, subject to pre-approval of such expenses and reasonable documentation evidencing same.

10. Employee Solicitation. Both during the term of the Agreement and for a period of one (1) year after the expiration or earlier termination of this agreement, neither party will directly or indirectly solicit for employment, employ, consult with, or otherwise retain the services of any of the employees of the other party with whom it has had direct interactions in connection with the services as set forth above; provided, however, that this restriction shall not apply to interviewing or hiring any such employee who responds to a general advertisement for a job opening.

11. Governing Law/Jurisdiction. In the event of any dispute between Client and Rocket Fuel Labs concerning any aspect of this Agreement, all such disputes (except for the right of either party to apply to a court of competent jurisdiction in Los Angeles, California, for a temporary restraining order, a preliminary injunction, or other equitable relief to prevent irreparable harm as set forth in Section 4, above), shall be resolved by binding and confidential arbitration before a single neutral arbitrator with the office of Judicial Arbitration and Mediation Services (“JAMS”) located in Los Angeles County, California. The arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules unless otherwise agreed-upon by the parties. The arbitrator shall apply the substantive law of the State of California, or federal law, or both, as applicable to the claim(s) asserted. The prevailing party shall be entitled to have the non prevailing party pay its reasonable attorneys’ fees and other litigation costs incurred in connection with any such arbitration. The arbitrator’s decision will be final, binding and enforceable in any court of competent jurisdiction.

12. Notices. All notices under this Agreement shall be in writing. For Client, the contact person shall be set forth in the SOW. For Rocket Fuel Labs, the contact person shall initially be Amanda Patterson and thereafter such other person as Rocket Fuel labs shall designate in writing from time to time. Notice shall be sent to Amanda Patterson at [email protected].

13. Entire Agreement. The Parties agree this Agreement, including any SOW(s), sets forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes any and all prior understandings and agreements, whether written or oral, between the parties with respect to such subject matter. A provision of this Agreement may be waived only by a written instrument executed by the party waiving compliance. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of the right to enforce such provision or any other provision hereof. In the event of a direct conflict between this Agreement and a SOW, the applicable SOW will control.

14. Counterparts. This Agreement may be executed in counterparts (electronic signature or digital image of the signed Agreement sent via email will suffice), each of which shall be deemed an original but all of which will constitute one and the same instrument.

15. Promotional Materials. Upon prior written approval, Rocket Fuel Labs shall have the limited right to use Client’s name and logo, as well as nonconfidential information regarding Rocket Fuel Labs work on Client’s campaign, in Rocket Fuel Labs promotional materials, including its portfolio, brochures, advertisements, and website.

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