Terms and Conditions

MASTER SERVICE AGREEMENT

RECITALS

        WHEREAS, Leverage Digital has the capability and capacity to provide certain marketing services; and 

        WHEREAS, Customer desires to retain Leverage Digital to provide said services, and Leverage Digital is willing to perform such services under the terms and conditions contained herein.

        NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is acknowledged, Leverage Digital and Customer agree as follows: 

TERMS

1. Recitals. The forgoing recitals are true and correct and are incorporated as a material part of this Agreement. 
2. Services. Leverage Digital shall provide to Customer the services (“Services”) set out in one or more statements of work to be requested by Customer and accepted by Leverage Digital (each, a “Statement of Work”). Statements of Work shall be deemed issued and accepted only if signed by Leverage Digital and Customer.
3. Customer’s Obligations.  Customer shall: 
   1. Respond promptly to any reasonable requests from Leverage Digital for instructions, information, or approvals required by Leverage Digital to provide the Services; and 
   2. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Leverage Digital’s provision of the Services.
4. Leverage Digital’s Warranty and Liability. 
   1. Leverage Digital warrants that the Services provided to Customer will be performed in a good and professional Manner consistent with the standards of the web services industry. Leverage Digital does not warrant, however, that any website developed for Customer will operate uninterrupted or error free, or that Customer’s website will achieve first page search engine rankings or that it may not be removed from any search engine index. Leverage Digital disclaims any implied warranty of merchantability or fitness for a particular purpose.
   2. Customer understands that Leverage Digital may remotely access Customer’s website and Customer’s servers and Customer agrees that Leverage Digital shall have no liability for any loss or destruction of any of Customer’s files or data. Customer will be responsible to maintain all appropriate backups of Customer’s files and data stored on Customer’s servers.
   3. In the event that Leverage Digital hosts Customer’s website, Leverage Digital specifically disclaims any warranty that the operation of the service will be uninterrupted or error free. Leverage Digital makes no representations or warranties, and shall have no liability with respect to the accuracy, dependability, privacy, security, authenticity, or completeness of data transmitted over the internet, or any intrusion, virus, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through the internet or the servers upon which the Services are provided.
   4. In no event will Leverage Digital be liable to Customer or any third party for any lost profits or other incidental, indirect, consequential, or special damages arising out of or relating to (a) the Service provided to Customer, (b) the operation of or inability to operate of any website developed for Customer, or (c) Leverage Digital’s access to Customer’s website and servers, even if Leverage Digital has been advised of the possibility of such damages. Leverage Digital does not guarantee increased traffic, increased leads, increased sales, nor does Leverage Digital make any performance guarantees of any kind as a result of its Services.
5. Payment Terms. 
   1. Payment. In consideration of the provision of the Services by Leverage Digital and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Statement of Work. Unless otherwise provided in the applicable Statement of Work, said fee will be payable on the same day each month for a minimum term of twelve (12) months. The engagement will begin once payment for the first month is received.
   2. Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; provided, that in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Leverage Digital’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
   3. Late Payments. Except for invoiced payments that Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Leverage Digital for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (Leverage Digital does not waive by the exercise of any rights hereunder), Leverage Digital shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts when due hereunder and such failure continues for three (3) days following notice thereof.
   4. Renewal. This Agreement shall automatically renew with a 4% rate increase, unless either party provides notice to the other of its intent to terminate not less than thirty (30) days before the end of the then current term.  
   5. Delinquency. Should Customer default in making payment, Leverage Digital reserves the right to terminate the Agreement, remove all corresponding updates from Customer’s website without obligation to reinstate such updates, and Customer will be obligated to pay the remaining balance of the Agreement in full.
6. Confidentiality and Proprietary Information. 
   1. Proprietary Information and Technology. "Proprietary Information and Technology" means software, firmware, hardware, technology and know-how and other proprietary information or intellectual property embodied therein that is known, owned or licensed by and proprietary to either party and not generally available to the public, including plans, analyses, trade secrets, patent rights, copyrights, trademarks, inventions, fees and pricing information, operating procedures, procedure manuals, processes, methods, computer applications, programs and designs, and any processed or collected data. The failure to label any of the foregoing as “confidential” or “proprietary” shall not mean it is not Proprietary Information and Technology.
   2. Confidentiality Obligations.  In order to protect both parties’ Proprietary Information and Technology the parties agree that each party shall use the same degree of care, but no less than a reasonable degree of care, as such party uses with respect to its own similar information to protect the Proprietary Information and Technology of the other party and to prevent any use of Proprietary Information and Technology other than for the purposes of this Agreement.  This Section imposes no obligation upon a party with respect to Proprietary Information and Technology which (a) was known to such party before receipt from the disclosing party; (b) is or becomes publicly available through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without a duty of confidentiality; (d) is disclosed by the disclosing party to a third party without imposing a duty of confidentiality on the third party; (e) is independently developed by the receiving party without a breach of this Agreement; or (f) is disclosed by the receiving party with the disclosing party’s prior written approval.  If a party is required by a government body or court of law to disclose Proprietary Information and Technology, this Agreement or any portion hereof, then such party agrees to give the other party reasonable advance notice so that the other party may seek a protective order or otherwise contest the disclosure.  
   3. Employees, Agents and Representatives. The receiving party shall only permit access to Proprietary Information and Technology to those of the receiving party’s employees, agents, and representatives who (a) have a need to know such information, (b) have been advised by the receiving party of the receiving party’s obligations under this Agreement, and (c) are contractually or legally bound by obligations of non‑disclosure and non‑use at least as stringent as those contained herein.  Each party represents and warrants to the other that it has adopted policies and procedures with respect to the receipt and disclosure of confidential or proprietary information, such as the Proprietary Information and Technology with its employees, agents and representatives. The receiving party represents warrants and covenants to the disclosing party that the receiving party will cause each of its employees, agents, and representatives to maintain and protect the confidentiality of the Proprietary Information and Technology. The failure of any employee, agent, or representative of the receiving party to comply with the terms and conditions of this Section shall be considered a breach of this Agreement by the receiving party.
   4. Term and Enforcement. The confidentiality obligation set forth in this Agreement shall be observed during the term of the Agreement and for a period of two (2) years following the termination of this Agreement. Each party acknowledges that a breach of any of the terms of this Section may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and shall be in addition to any other relief to which the non-breaching party may be entitled at law or in equity.  Such remedy shall not be subject to the arbitration provisions set forth in Section 12(h).
   5. Return of Proprietary Information and Technology.  Upon the termination, cancellation or expiration of this Agreement, the receiving party shall, upon the disclosing party’s written request, return all Proprietary Information and Technology (including all copies thereof), to the disclosing party, or at the disclosing party’s instruction, destroy such Proprietary Information and Technology.
7. Intellectual Property Rights; Assignment.
   1. Existing Intellectual Property. Leverage Digital shall retain all right, title, and ownership to any Leverage Digital “Existing Intellectual Property.” Existing Intellectual Property shall mean any discovery, inventions, technical information, procedures, processes, software, firmware, technology, know-how or other intellectual property right owned or developed by Leverage Digital outside of this Agreement or owner or controlled by Leverage Digital prior to the execution of this Agreement that are used by Leverage Digital in creating, or are embodied within, any Service, product, or other work performed under this Agreement; and all improvements, modifications, or enhancements to the foregoing made by or on behalf of Leverage Digital. 
   2. Created Intellectual Property. Leverage Digital shall retain all right, title, and ownership to any Leverage Digital “Created Intellectual Property” that is prepared as part of the Services or into any other work provided pursuant to this Agreement or any other related agreement executed by the Parties. Created Intellectual Property shall mean any discovery, inventions, technical information, procedures, processes, software, firmware, technology, know-how or other intellectual property right newly created or developed, and reduced to practice by or for Leverage Digital in preparing or performing the Services or any other work provided pursuant to the Agreement; but shall not include Leverage Digital Existing Intellectual Property. Created Intellectual Property and Existing Intellectual Property shall collectively be referred to as “Intellectual Property.”
   3. License. Upon full and timely payment of all monies due and owing under this Agreement for the first twelve (12) months and all other monies due and owing to Leverage Digital pursuant to any other related agreement executed by the parties, Leverage Digital will grant to Customer a worldwide, non-exclusive, fully paid, royalty free right and license under Leverage Digital intellectual property rights to the Intellectual Property rights only insofar as is required for Customer to use the Services provided as part of the Agreement; provided however, that no license or other rights to Leverage Digital Intellectual Property shall be granted hereunder. 
   4. Services. If the Services provided by Leverage Digital were for the creation of a website for Customer ("Website"), Leverage Digital will transfer ownership of the Website to Customer after payment is made pursuant to Section 7(c) and subject to the license in Section 7(c).
8. Non-Solicitation. 
   1. Non-Solicitation of Customer’s Employees. During and for a period of two (2) years after the termination of this Agreement, Leverage Digital shall not hire or pirate away, or induce, solicit, influence, or attempt to influence any employee of Customer to terminate his or her employment with Customer, as Customer has made substantial investments to acquire, hire, and train its employees and has a legitimate business interest in protecting its investment and developing and maintaining workforce stability, productivity, and a specialized workforce.
   2. Non-Solicitation of Leverage Digital’s Employees. During and for a period of two (2) years after the termination of this Agreement, Customer shall not hire or pirate away, or induce, solicit, influence, or attempt to influence any employee of Leverage Digital to terminate his or her employment with Leverage Digital, as Leverage Digital has made substantial investments to acquire, hire, and train its employees and has a legitimate business interest in protecting its investment and developing and maintaining workforce stability, productivity, and a specialized workforce.
9. Warranty and Indemnification. Customer represents and warrants that it has conducted, and will conduct, all patent, trademark and copyright searches necessary to identify and evaluate any potential infringement claims with respect to any element of text, graphics, photographs, designs, trademarks, or other works furnished to Leverage Digital by Customer (“Furnished Elements”).  Customer agrees to indemnify, defend and hold Leverage Digital and its employees, subsidiaries, affiliates, agents, successors and assigns harmless from and against all claims, damages, losses, costs and expenses, including attorneys' fees, arising out of or relating to any third party claims asserted against Leverage Digital and/or its employees, subsidiaries, affiliates, agents, successors and assigns, that are based in part or in whole on any claim that the Furnished Elements infringes or violates any patent, copyright or other intellectual property right of a third party. Leverage Digital may employ counsel, at its own expense to assist Leverage Digital with respect to any such claims, provided that if such counsel is necessary because of a conflict of interest with Customer or its counsel or because Customer does not assume control of the defense of a claim for which Customer is obligated to indemnify Leverage Digital hereunder, Customer shall bear such expense. Customer shall not enter into any settlement that affects Leverage Digital’s rights or interests without Leverage Digital’s prior written approval, which shall not be unreasonably withheld. Leverage Digital will provide such assistance and cooperation as is reasonably requested by Customer or its counsel in connection with such indemnified claims.
10. Termination. 
    1. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work, unless sooner terminated pursuant to this Section.
    2. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (1) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within five (5) business days after receipt of written notice of such breach; (2) becomes insolvent or admits its inability to pay its debts generally as they become due; (3) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within thirty (30) calendar days after filing; (4) is dissolved or liquidated or takes any corporate action for such purpose; (5) makes a general assignment for the benefit of creditors; or (6) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Notwithstanding anything to the contrary in Section 11(b), Leverage Digital may terminate this Agreement before the expiration date of the term on written notice if Customer fails to pay any amount when due hereunder.
    4. The rights and obligations of the parties set forth in this Section 11(d) and in Sections 2, 4, 5, 6, 7, 8, 9, 10, and 12, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
11. Miscellaneous Provisions. 
    1. Assignment and Succession. This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns. To the fullest extent permitted by law, neither party shall sublet, assign, or transfer this Agreement or any rights or obligations hereunder without the express written consent of the other party. 
    2. No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.
    3. Waiver. Any failure by Leverage Digital to insist upon strict performance by Customer of any of the terms and provisions of this Agreement shall not be deemed to be a waiver of any of the terms or provisions hereof, and Leverage Digital, notwithstanding such failure, shall have the right thereafter to insist upon the strict performance by Customer of any and all of the terms and provisions of this Agreement. 
    4. Severability. Should any provision of this agreement be deemed or determined to be unenforceable by a court of competent jurisdiction, the remaining contract provisions shall remain in full force and effect.
    5. Interpretation of Documents. This Agreement shall be interpreted pursuant to the laws of the State of Florida. Each party has had the opportunity to confer with counsel and to participate in the drafting and negotiation of same, and as such, expressly disclaim and waive any doctrine where interpretation is construed against any one party.
    6. Limitation of Liability.  Leverage Digital and Customer mutually agree to waive any and all claims for incidental and consequential damages, including losses due to delay and lost business opportunities.  Customer further agrees that Leverage Digital’s liability hereunder shall not exceed the amount of each respective Statement of Work. This limitation of liability is a material inducement for Leverage Digital to perform the Services contemplated in this Agreement and each subsequent Statement of Work.
    7. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY OTHERWISE HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    8. Arbitration.  All claims, disputes and other matters in question between the parties to this Agreement, arising out of or relating to this Agreement or any breach thereof, shall be decided by mandatory binding arbitration with an arbitrator mutually agreed upon by the parties, and in the event that the parties are unable to agree, then by an arbitrator selected in accordance with the Arbitration Rules of the American Arbitration Association with venue lying exclusively in Hillsborough County, Florida.  This Agreement to arbitrate shall be specifically enforceable, and judgment upon the award rendered by the arbitrator may be entered by any Court having jurisdiction thereof. As a condition precedent to initiating any legal action against Leverage Digital, Customer agrees to enter into non-binding mediation.  
    9.  Force Majeure. Leverage Digital shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Leverage Digital including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give notice in writing to Leverage Digital to terminate this Agreement.
    10. Attorneys’ Fees.  In the event of any litigation or arbitration arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs, including fees and costs incurred pre-suit, in arbitration and during judicial proceedings through and including the trial or final hearing, on appeal, to establish entitlement to fees hereunder and the reasonable amount, and in any post-judgment collection proceedings.
    11. Governing Law.  This Agreement shall be construed and enforced in accordance with the laws of the State of Florida, without regard to its conflicts of law rules. Any dispute or litigation arising out of the terms of this Agreement shall be resolved in the proper court of competent jurisdiction located in Hillsborough County, Florida.
    12. Complete Agreement.  This Agreement (including the documents referred to herein), constitutes the entire agreement among the parties and supersedes any prior understanding, agreements, or representations by or among the parties, written or oral, to the extent they have related in any way to the subject matter hereof.
    13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
    14. Headings. The Section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
    15. Notices. All notices, requests, demands, claims and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:

        If to Leverage Digital:     Leverage Digital
                                                            1646 W Snow Ave, Suite 20
                                                            Tampa, FL 33606

        If to Customer: The address indicated in your Services Agreement.

        Any party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient.  Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other parties notice in the manner herein set forth.
    16. Authority and Expenses.  The person signing on behalf of Customer acknowledges that it has the requisite authority to bind Customer. Each party shall bear their own fees, costs and expenses (including legal, accounting and consulting fees and expenses) incurred in connection with this Agreement or the transactions contemplated hereby.