MASTER SERVICES AGREEMENT
This Services Agreement (the “Agreement”) sets forth terms under which SeekXR, Inc., a Delaware Corporation
(“Company”) shall provide services to the end user (the “Client”). This Agreement is effective on the date a corresponding SOW (“SOW” or “Statement of Work”) or agreed upon Quote is executed (“Effective Date”).
- Term. The term of this Agreement will be from the Effective Date until terminated as provided in Section 7. (the “Term”).
- Services. Company shall provide 3D, augmented reality, web3, software, or NFT platform services (“Services”) to the Client as described on one or more SOW signed by Company and Client that reference this Agreement. Company shall perform Services in a prompt manner and have the final product or service (“Deliverable”) ready for Client no later than the due date specified in the applicable SOW (“Completion Date”). This due date is subject to change in accordance with the Change Order process defined in the applicable SOW. Client shall assist Company by promptly providing all information requests known or available and relevant to the Services in a timely manner.
- Compensation. For performance of the Services and rendering the Deliverable, Client shall pay to Company all fees due under the applicable SOW.
- Deposit. If an initial payment (the “Deposit”) is required, such deposit will be specified in the applicable SOW.
- Dates of Performance. Company will begin performing services upon receipt of signed Agreement and Deposit (if applicable). Unless terminated as provided in this Agreement, Company will complete Services by the Completion Date. Deliverable shall be furnished to Client within 72 hours of final payment for the Services.
- Change in Services. If Client desires changes to the SOW, Client shall submit to Company a written request in accordance with the change order process defined in the applicable SOW. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution by Company and the Client. If additional SOWs are executed, then Client shall pay Company for all services performed prior to the additional SOW and before Company begins work on the new SOW.
- Termination. In the event that Client has breached this Agreement or any SOW, then Company shall provide Client with written notice of such breach and Client shall have a period of thirty (30) days from the date it receives such notice in order to cure such breach. If Client fails to cure such breaching within the thirty (30) day notice period, then Company shall have the right to modify, reject, or terminate any SOW and any related work in process In the event Company terminates the SOW prior to completion of Services, the Client shall pay Company the fees due under the SOW with respect to Services completed as of the date of termination. Payment for completed work will be deducted from the deposit (if applicable). Any amount due for services performed by Company above the deposit will be billed to Client and Client shall pay within thirty (30) days from the date of invoice. Upon settlement of funds due to Company, all Client provided materials will be returned to Client and all Client use rights in the work in process as described in Section 10 will be transferred to Client.
- Payment of Services. In exchange for Company’s Services under this Agreement, the Client shall pay Company the contract price and deposit set forth in the applicable SOW. Company will submit a final invoice to Client for all services rendered by the Services Completion Date and Client shall pay within thirty (30) days from the date of invoice. Client is restricted from using any form of the Deliverable until final payment is received.
- Representations and Warranties.
- Company’s Representation: Company represents and warrants that (a) any materials used in the Deliverables will not knowingly (i) infringe on the intellectual property rights of any third party or any rights of publicity or privacy, or (ii) violate any law, statute, ordinance or regulation, (b) the Deliverables shall materially conform to the specifications set forth in the relevant SOW; (c) it shall use reasonable efforts to ensure the Services and Deliverables do not include or transmit any viruses, Trojan Horses, worms, spyware, or other similarly destructive or malicious code; (d) Company shall provide Client with the functionality necessary for Client to comply with all new, amended, or otherwise modified laws, applicable to the Services at no additional charge to Client; and Company shall comply with all applicable laws and regulations in its performance of this Agreement, including, but not limited to, all local, state, federal, and international privacy, confidentiality, consumer protection, advertising, electronic mail, data security, data destruction, and other similar laws, rules, and regulations, whether in effect now or in the future.
- Client’s Representation: Client represents that any materials provided to Company by Client for incorporation into the Deliverable will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
- Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Ownership of Deliverables. “Intellectual Property Rights” means any and all (a) rights associated with works of authorship, including but not limited to copyrights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents and (c) all other intellectual property rights in any jurisdiction throughout the world. To the fullest extent permitted by law, Company retains ownership in all Intellectual Property rights of the Deliverable to the extent the Company provided the source files, images, video, music, or other relevant components to the Deliverable. Upon full payment of the Deliverable, Company grants Client a perpetual, non-exclusive and non-transferable license to use, copy, reproduce, display, or distribute the source files created for purposes of the Deliverable. Client shall retain sole ownership of all Intellectual Property Rights in connection with any original material it provides to Company for use within the Deliverable. If termination occurs under Section 7, Company shall retain ownership in all Intellectual Property Rights and to the raw video footage, music, images, and other components comprising the work in process up to the date of termination. After a termination under Section 7 and upon full payment for the work in process, Company will grant Client a perpetual, non-exclusive and non-transferable license to use, copy, reproduce, display, or distribute the work in process. In no event will Company be liable for any claims related to or arising from Client’s improper use of the Deliverable, work in process, or the music, images, and other components that comprise the Deliverable or work in process.
While the Client retains all rights to the source files created or provided for the Deliverable, Company retains full ownership of the plurality of hosted files generated for purposes of hosting and enabling cross-platform access by customers.
Company retains the right to display graphics and other web content elements as examples of their work in their portfolio and as content features in other projects, subject to restriction from any specific timeline from Client.
- Client will defend, indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to any claims regarding elements or materials provided by Client and incorporated into the Deliverable. Additionally, Client will defend, indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to any claims regarding Client’s unauthorized use of any music, images, or other materials comprising the Deliverable.
- At Company’s expense as provided herein, Company agrees to defend, indemnify, and hold harmless Client and its directors, officers, agents, employees, members, subsidiaries, franchisees, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs as provided herein arising out of or relating to (a) any alleged act or failure to act by Company or its directors, officers, agents, or employees, including, without limitation, negligent or willful misconduct, alleged to (1) infringe the intellectual property rights of a third person, including infringement claims relating to Client’s authorized use of the Services or Deliverables, or (2) cause any injury to any person or persons or damage to tangible or intangible property, (b) any breach of the provisions of Section 18 (Confidentiality), or (c) any breach (or claim or threat thereof that, if true, would be a breach) of any of the warranties, agreements, representations or obligations of Company under this Agreement, (collectively referred to for purposes of this Section 11.2 as “Claim(s)”), including the payment of all amounts that a court or arbitrator awards or that Company agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by Client or any other party indemnified under this Section 16.1 in cooperating in the defense of any Claim(s). Client shall: (i) give Company prompt written notice of such Claim; and (ii) allow Company to control, and fully cooperate with Company in, the defense and all related negotiations. Notwithstanding the foregoing, Company shall have no indemnity obligation for intellectual property infringement claims arising from (i) specifications provided by Client; (ii) use of the Services in combination with software and/or hardware that is not approved or provided by Company; or (iii) Client’s failure to implement an update or enhancement to the Services, provided Company provides Client with notice that implementing the update or enhancement would avoid the infringement.
- Additional Remedy. If Services or Deliverables become the subject of an infringement claim under Section 11.2, or is likely to become the subject of such a claim, then, in addition to defending the claim and paying any damages and attorneys’ fees as required above in Section 11.2, Company shall, at its option and in its sole discretion, either (a) immediately replace or modify the Services and/or Deliverables or otherwise perform the Services, providing not less than the functionalities specified in this Agreement and the applicable SOWs to make them non-infringing or cure any claimed misuse of another’s intellectual property or (b) immediately procure for Client the right to continue using the Services and Deliverables pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by Company. If Company fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim (and such time has not been extended by Client in writing), Company shall refund to Client all sums paid by Client under this Agreement or the applicable Order for the infringing Deliverable or Service.
- Limitation of Liability. EXCEPT AS OTHERWISE SET FORTH HEREIN, COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO COMPANY HEREUNDER.
- Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.
- General. Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Any notice or consent under this Agreement will be in writing to the address specified below. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Both parties agree that the Agreement is signed by a duly, authorized Company representative authorized to bind the Company to its terms and services and no consent from any third party is required.
- Choice of Law. This Agreement will be deemed to have been made in and shall be construed pursuant to the laws of the State of Utah and the United States without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in Utah (or other agreed upon venue), and each party irrevocably submits to the jurisdiction and venue of such courts.
- Force Majeure. Any delay or failure of a Party hereto to perform its obligations hereunder will be excused if and to the extent that it was caused by an event or occurrence beyond such Party’s reasonable control and without its fault or negligence (“Force Majeure”). Force Majeure includes, but is not limited to, acts of God, actions by any government authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, or court injunction or order. A Party claiming Force Majeure must provide the other Party with written notice of such delay (including the anticipated duration of the delay) within ten days of the occurrence of Force Majeure. If the delay lasts more than 30 days, or if the Party claiming Force Majeure does not provide adequate assurances to the other Party that the delay will cease within 30 days, such other Party may terminate this Agreement upon written notice to the Party claiming Force Majeure.
- Disputes. In the event one Party believes the other Party to be in breach of this Agreement (“Dispute”), the aggrieved Party shall notify the other Party or its counsel (“Notice”) of the alleged breach or violation, and the Parties shall attempt in good faith to resolve or clarify the Dispute (“Negotiation”). In the event the parties are unable to cooperatively resolve the Dispute, they shall attempt, in good faith, to mediate the matter in a mutually acceptable location 5 (“Mediation”), engaging the services of a mediator familiar with subject matter at issue and acceptable to both Parties. Applicable mediation fees shall be borne equally by the Parties. The requirement of Mediation shall be deemed satisfied if the filing Party proposed a qualified mediator and offered to make itself reasonably available during the 60 days following Notice, but Mediation did not take place or conclude within such 60-day period.
The requirement of Mediation and Negotiation may be waived upon mutual written consent of the Parties. Further, notwithstanding the foregoing, either Party may seek injunctive relief against a Party related to the acts or omissions of such Party that breach this Agreement and cause or are likely to cause irreparable harm to the other Party, without the requirement of Mediation or Negotiation.
- Remedies. Company reserves all remedies available at law or equity for any disputes that arise under this Agreement.
- Definitions. “Confidential Information” means all information disclosed (whether in oral, written or other tangible or intangible form) by one party (the “Disclosing Party”) to the other (the “Receiving Party”) related to this Agreement, the Services, or the proprietary operational details of the company and its personnel, in each case when such information is marked as confidential or would normally be considered confidential information under the circumstances.
- Exceptions. Confidential Information will not include information that is: (a) in the possession of the Receiving Party prior to its disclosure by the Disclosing Party and not subject to other restriction on disclosure; (b) independently developed by the Receiving Party without use of the information disclosed to it pursuant to this Agreement; (c) publicly disclosed by the Disclosing Party or at the instruction of the Disclosing Party; (d) rightfully received by the Receiving Party from a third party without restriction on disclosure; (e) approved for unrestricted release or unrestricted disclosure by the Disclosing Party.
- Treatment. The Receiving Party shall not disclose Confidential Information except to affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The Receiving Party will ensure that the Receiving Party itself and those recipients use the Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. The foregoing notwithstanding, the Receiving Party may disclose Confidential Information, under the following circumstances:
- As required in order to comply with the law after giving reasonable notice to the Disclosing Party, if permitted by law;
- In order to facilitate the operation of the Services requested by Client; and
- With express written permission from the Disclosing Party.
Accepted and agreed to as of the Effective Date by the authorized representative of each party: