Master Subscription Agreement
INTEGRATED DIGITAL MARKETING SERVICES MASTER SUBSCRIPTION AGREEMENT
Last updated on 01 JUNE, 2016
This Integrated Digital Marketing Master Subscription Agreement (“Agreement”) is made and entered into as of the Order Form Effective Date of the first Order Form executed between MODIGIBIZ LTD, (“MODIGIBIZ”) a private company limited by shares incorporated under the laws of the Republic of Mauritius, with business registration number C15128323 and the Client (hereinafter referred to as “Client”, which expression shall include its successors-in-title, liquidators, administrators and assignees where the context so requires or admits), described in such Order Form.
CLIENT IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT. BY SIGNING AN ORDER FORM OR ACCESSING OR USING SERVICES OF MODIGIBIZ, CLIENT CONFIRMS THAT CLIENT HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CLIENT MAY REFERENCE OR PROVIDE, MODIGIBIZ’s OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CLIENT WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CLIENT’S ASSENT HERETO.
The terms and conditions of this Agreement shall govern the Services to be provided by MODIGIBIZ under any Order Form submitted by Client and accepted by MODIGIBIZ, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement.
NOW, THEREFORE, for good and valuable consideration, the Parties hereby agree as follows
This Agreement shall commence on the effective date of the signed applicable Order Form and shall continue in full force and effect for the time period explicitly specified in the said Order Form unless terminated as provided in clause 10.
2. OBLIGATIONS OF MODIGIBIZ
2.1 MODIGIBIZ agrees to provide an Integrated Digital Marketing Solution as described in the applicable Order Form.
3.1 The Client agrees to pay the fees set out in the applicable Order Form in accordance with the terms of payment under clause 4.
3.2 Incorporated into MODIGIBIZ’s fees are routine administrative costs that include telephone calls, copy expenses, and facsimiles. The Client will be billed for actual costs for non-routine costs that include, but are not limited to, travel expenses, third party service conference calls and non-routine postage and copying expenses.
3.3 The Client will pay MODIGIBIZ for any additional services provided by MODIGIBIZ that are not specified under clause 2 in accordance with MODIGIBIZ’s then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed.
3.4 The fees set out in the applicable Order Form are exclusive of any value added or other tax (except corporation tax) or other taxes on profit, for which that party shall be additionally liable.
3.5 The fees set out in the applicable Order Form are subject to revision and change after each 12 months period throughout the duration of this Agreement.
4.1 The fees set out in the applicable Order Form shall be payable in full according to the agreed payment schedule set out in the Order Form by bank transfer as below:
To: MODIGIBIZ LTD
Bank: Mauritius Commercial Bank
Account Number: 000443393494
SWIFT CODE: MCBLMUMU
4.2 All payments required to be made pursuant to this Agreement by the Client shall be made within 3 days of the date of the relevant invoice raised by MODIGIBIZ, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
4.3 The time of payment shall be of the essence of these terms and conditions. If the Client fails to make any payment on the due date in respect of the fees then MODIGIBIZ shall, without prejudice to any right which MODIGIBIZ may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 1 per cent and the base rate of the Bank of Mauritius from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgment.
5. OBLIGATIONS OF THE CLIENT
5.1 The Client shall provide MODIGIBIZ and its authorised employees and agents timely and reasonable access to its information and property for the purposes of MODIGIBIZ’s services.
5.2 The Client shall pay the fees in full as provided for under this Agreement.
6. WARRANTIES AND COVENANTS
6.1 Representations and Warranties
Each Party represents and warrants to the other Party that:
(i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder;
(ii) the execution of this Agreement by such Party and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a Party or otherwise bound;
(iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as may be limited by laws of bankruptcy or similar laws of equitable relief; and
(iv) Each Party acknowledges that the other party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided in this Agreement.
Each Party covenants with all other Parties that Each Party will comply with all laws and regulations applicable to the performance of such Party’s obligations under this Agreement
7.1 Indemnification of the Client by MODIGIBIZ
MODIGIBIZ shall indemnify, defend, and hold harmless the Client and its directors, officers, employees, agents and representatives from and against any and all suits, actions, damages, costs, losses, expenses, judgments, settlement costs, and other liabilities arising from:
(i) Any negligent or willful errors or omissions on the part of MODIGIBIZ; or
(ii) Any breach of this Agreement by MODIGIBIZ.
These indemnification provisions shall survive any termination of the Agreement.
7.2 Indemnification of MODIGIBIZ by the Client
The Client agrees to cooperate fully with MODIGIBIZ and provide it with information necessary to perform the services required under this Agreement, and to put forth its best efforts to avoid any claims, suits, investigations, or proceedings (collectively or individually, a “Claim”) against MODIGIBIZ. The Client shall indemnify, defend, and hold harmless MODIGIBIZ, its subsidiaries and affiliates, and their directors, officers, employees, agents, representatives, suppliers and vendors from and against any and all suits, actions, damages, costs, losses (including, without limitation, reasonable attorneys’ fees), expenses, judgments, settlement costs, and other liabilities arising from:
(i) Assertions made regarding the Client or the Client’s competitors, or any of their products or services, in any advertising which MODIGIBIZ may prepare for the Client; or
(ii) An advertising element which is furnished by the Client to MODIGIBIZ and which allegedly violates the personal or property rights (including copyrights, trademarks or service marks) of anyone, or otherwise injures anyone; or
(iii) Any alleged injury that a third party may attribute to the Client’s products or services; or
(iv) Any negligent or willful errors or omissions on the part of the Client; or
(v) Any breach of this Agreement by The Client.
These indemnification provisions shall survive the termination of this Agreement.
7.3 Indemnity against Intellectual Property Claims
The Client shall indemnify and hold MODIGIBIZ harmless against any claim, suit or action, or any alleged violation or infringement of intellectual property rights which may be made against MODIGIBIZ by reason of the use in connection with or as a part of the performance of the work or the furnishing of materials hereunder, of anything which is now or may hereafter be covered by patent, copyright or trademark, and against all expenses, including attorneys’ fees, which MODIGIBIZ may incur in defending or adjusting any such claim, suit or action.
8. PROPRIETARY RIGHTS
8.1 Ownership of Work Product.
8.1.1 MODIGIBIZ agrees and acknowledges that all images, logos, trademarks, slogans, artwork, written materials, drawings, photograph that is created specifically for the Client by MODIGIBIZ under this agreement and accepted by the Client as provided in clause 8.2 below (collectively the “Work Product”) are the property of the Client.
8.1.2 The Client agrees and acknowledges that all intellectual property such as original work, ideas, concepts, images, trademarks, photograph, graphic material, film, music, other materials names, processes and procedures, any and all other intellectual property or other materials that are subject to copyright, trademark, patent, or similar protection, used in connection with the services provided to the Client by MODIGIBIZ under this agreement (collectively the “Intellectual Product”) are the exclusive property of MODIGIBIZ. To the extent any of the Work Product is licensed to MODIGIBIZ by a third party for MODIGIBIZ’s exclusive use and enjoyment, MODIGIBIZ shall retain all rights, title, and interest in and to the licensed portion of the Work Product and to any modifications or improvements made thereto and may use such Work Product as part of its services to other parties. It is understood that MODIGIBIZ may, on occasion, use license materials from third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials remains with the licensor at the conclusion of the term of the license described in clause 8.2 below and does not belong to the Client.
8.2 Acceptance of and Grant of License to Work Product.
After review of MODIGIBIZ’s work, the Client shall provide MODIGIBIZ with acceptance of the work. The Client acknowledges that the fees charged by MODIGIBIZ for this work, as outlined in the applicable Order Form, were specifically calculated based on the usage contemplated by the Client. MODIGIBIZ grants the Client a limited, non-exclusive right to use the Work Product but only for the uses associated with the projects described in any estimate or written project description agreed to by the parties, and only in the event the following conditions are met: (1) such Work Product is accepted in writing by the Client; (2) Client pays all fees and costs associated with creating and, where applicable, producing such Work Product.
8.3 Return of Materials.
The Client shall promptly return any and all tangible MODIGIBIZ property that has come into the Client’s possession. Upon termination of this Agreement for any reason, the Client shall, within ten (10) days of such termination and in accordance with any instruction provided by MODIGIBIZ, return to MODIGIBIZ any and all tangible MODIGIBIZ property that has come into the Client’s possession, including all copies thereof and any notes, memoranda, and other documents of other media relating thereto. Unless transferred pursuant to clause 8.1, the product of all work performed under this Agreement, including, without limitation, reports, drawings, computer programs, data, devices or models, shall be the property of MODIGIBIZ or its nominees, and MODIGIBIZ or its nominees shall have the sole right to use, sell, license, publish or otherwise disseminate or transfer rights of such work products.
9.1 The Client’s Confidential Property.
9.1.1 Except in the course of rendering the services contemplated by this Agreement, MODIGIBIZ shall not disclose or cause to be disclosed to any third party (other than its employees, consultants and contractors rendering services or providing facilities or materials in connection with MODIGIBIZ services to the Client) any information of any type that is secret, concerns the Client’s business and is not otherwise known outside of the Client, including, but not limited to, such information contained in marketing timetables, projections, information and operation methods, specifications, know-how, techniques, manuals and the like, both written and unwritten (“Confidential Property”) which may be given or shown to MODIGIBIZ or to which MODIGIBIZ may be granted access by the Client or its affiliates.
9.1.2 Confidential Property shall not include anything which (i) is approved for release pursuant to the Client’s written authorization; (ii) is a matter of public information; (iii) is information previously known to MODIGIBIZ which was not obtained from the Client or in any improper manner; (iv) is information now in the public domain or which subsequently enters the public domain not as the result of MODIGIBIZ’s action or inaction; or (v) is information subsequently made available to a third party under no duty to the Client to preserve its confidentiality.
9.2.3 MODIGIBIZ agrees to take all reasonable measures to avoid any wrongful disclosures, and to exercise no less than the standard of care MODIGIBIZ uses to safeguard its own trade secrets and other of its own Confidential Property. MODIGIBIZ shall advise each of its employees, consultants and contractors working on any of The Client’s matters as to this obligation and shall use reasonable efforts to have them agree to comply with the requirements set forth in this paragraph.
9.2 MODIGIBIZ’s Confidential Property.
MODIGIBIZ considers any information of any type that is secret, concerns MODIGIBIZ’s business, and is not otherwise known outside of MODIGIBIZ or its subsidiaries or affiliates, and such information contained in marketing timetables, projections, information and operation methods, specifications, know-how, financial information, strategies, techniques, methodologies, manuals and the like, both written and unwritten, to be its Confidential Property. The Client agrees to hold such Confidential Property in confidence, to take all reasonable measure to avoid any wrongful disclosures, and to exercise no less than the standard of care the Client uses to safeguard its own trade secrets and other of its own Confidential Property. The Client shall advise each of its employees, consultants and contractors working on any matters relating to MODIGIBIZ as to this obligation and shall use reasonable efforts to have them agree to comply with the requirements set forth in this paragraph.
9.3 Specific Performance.
The Client acknowledges that the subject matter of MODIGIBIZ’s services are of a special, unique and extraordinary character and that it would be difficult to impossible to value the damages rendered in the event of disclosure by the Client to third parties and the Client further acknowledges that a violation by the Client of any of the restrictive covenants contained in this Agreement could cause irreparable injury to MODIGIBIZ and that in such event money damages would not be readily calculable and that MODIGIBIZ would not have an adequate remedy at law. By reason thereof, the Client agrees and consents that if it violates any of the provisions of this Agreement, in addition to any other rights and remedies available under this Agreement or otherwise, shall be entitled to an injunction to be issued by any Court of competent jurisdiction restraining the Client from committing or continuing any violation of this Agreement.
Unless otherwise terminated as provided for herein, this Agreement shall continue in full force and effect for an indefinite time period.
This Agreement may be terminated upon 90 days written notice by the Client in case of material breach of one of the terms and conditions of this Agreement by MODIGIBIZ.
This Agreement shall automatically terminate on occurrence of any of the following events:
(i) Bankruptcy or insolvency of either party;
(ii) Sale of the business of either party;
(iii) Assignment of this Agreement by either party without the consent of the other party.
10.4 In the event that the Client materially defaults with respect to any of the other provisions of the Agreement, MODIGIBIZ may, at its option, give written notice of such default to the Client and provide five (5) days to cure said default. If the default is not cured within that time period, MODIGIBIZ may terminate this Agreement and all rights granted to the Client under the terms of this Agreement terminate. Such a remedy shall be in addition to and without prejudice to any right or remedy in law or equity or provided for elsewhere in this Agreement on account of any violation or breach.
10.5 In the event of this Agreement being determined under clause 10.3 and 10.4 the Client shall pay MODIGIBIZ all arrears of payments due for the total fees under the applicable Order Form of this Agreement and any other sums due under the terms of the Agreement.
11.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
communicated by email; or
delivered by hand or by post at its registered office (if a company) or its principal place of business (in any other case); or
sent by fax to its main fax number.
Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt;
(ii) if sent by post on the next working day delivery service; or
(iii) if sent by fax, on the next Business Day after transmission.
This Agreement shall be binding upon the parties hereto and their respective heirs, successors or representatives.
13. PARTIAL INVALIDITY
If at any time any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the laws of the Republic of Mauritius, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the laws of the Republic of Mauritius or any other jurisdiction shall in any way be effected or impaired thereby. Notwithstanding the above, the parties to this Agreement are at liberty to alter the provision or provisions so severed, with a view to bring it in conformity with the laws of the Republic of Mauritius.
14. DISPUTE RESOLUTION
14.1 The parties agree that if any difference, dispute, conflict or controversy (a “Dispute”), arises out of or in connection with this Agreement or its performance, including without limitation any dispute regarding its existence, validity, termination of rights or obligations of any party, the parties will attempt for a period of thirty days after the receipt by one party of a notice from the other party of the existence of the Dispute to settle the Dispute by amicable settlement between the parties.
14.2 If the parties are unable to reach agreement to settle the Dispute within the thirty-day period mentioned above, then either party may submit the Dispute by way of arbitration as described below.
14.3 The language used in the arbitration shall be English.
14.4 The number of arbitrators shall be one and shall be appointed jointly by the parties. The cost of arbitration shall be shared equally between the Parties.
14.5 The parties shall keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court, tribunal or other judicial authority.
15. ENTIRE AGREEMENT AND NO WAIVER
15.1 This Agreement, including its Exhibit, Annex and applicable Order Form, embodies the entire understanding of the parties in respect of the matters contained or referred to in it and there are no promises, terms, conditions or obligations, oral or written, express or implied other than those contained in this Agreement. Furthermore, this Agreement supersedes any written or oral representations or other document made prior to its signature.
15.2 Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
15.3 No relaxation or indulgence which MODIGIBIZ may show to the Client in the execution of its obligations under this Agreement shall in any way prejudice the rights of MODIGIBIZ hereunder.
16. ALTERATIONS TO THE PRESENT AGREEMENT
This Agreement may be modified only by a further writing that is duly executed by both parties.
17. GOVERNING LAW AND JURISDICTION
17.1 This Agreement and, without limitation, any question relating to its existence, interpretation, execution or termination shall be determined in accordance with the laws of the Republic of Mauritius.
17.2 The parties to this Agreement hereby agree for the benefit of the other, and without prejudice to the right of the other to take proceedings in relation hereto before any other court of competent jurisdiction, that the courts of the Republic of Mauritius shall have jurisdiction to hear and determine any suit, action or proceeding that may arise out of or in connection with this Agreement, and for such purposes irrevocably submit to the jurisdiction of such courts