Version 0.1 Last updated: 2021-05-03
This Services Agreement (“Agreement”) is incorporated by reference into any Statement of Work (the “Statement of Work“) between Triple Lift, Inc. (“TripleLift”) and the Service Provider set forth in any such Statement of Work (the “Service Provider” and, together with TripleLift, the “Parties”, and each a “Party”).
1. Services. Service Provider shall provide TripleLift the services (the “Services”) set out in the Statement of Work. The Service Provider shall provide the Services: (a) in accordance with the terms and subject to the conditions set forth in the Statement of Work and this Agreement; (b) using personnel (as applicable) of required skill, experience, and qualifications; (c) in a timely, workmanlike, and professional manner; (d) in accordance with standards in Service Provider’s field; and (e) to the satisfaction of TripleLift.
2. Fees and Expenses. In consideration of the Services to be performed under this Agreement, TripleLift shall pay to Service Provider a fee determined in accordance with the fee schedule set out in the Statement of Work. Unless otherwise provided in the Statement of Work, said fee will be payable within 60 days of receipt by TripleLift of an invoice from Service Provider accompanied by documentation reasonably requested by TripleLift evidencing all charges. If reimbursement of expenses is agreed between the Parties in the Statement of Work, the invoice shall include, and TripleLift shall reimburse Service Provider for, reasonable expenses incurred in accordance with and set forth in the Statement of Work. All Service Provider expenses not pre-approved by TripleLift or not otherwise meeting the requirements of this Agreement or the Statement of Work to which it applies shall be the sole responsibility of the Service Provider. Each Party shall be responsible for its own taxes.
3. Intellectual Property. TripleLift is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all the work product, results and proceeds of the Services performed under this Agreement (collectively, the “Deliverables”), including all Intellectual Property Rights therein. Service Provider agrees, and (if applicable) will cause its personnel 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 TripleLift. To the extent that any of the deliverables do not constitute a “work made for hire”, Service Provider hereby irrevocably assigns, and (if applicable) shall cause its personnel to irrevocably assign to TripleLift, 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. If applicable, the Service Provider shall cause its personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such personnel 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 request of TripleLift, Service Provider shall, and (if applicable) shall cause its personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist TripleLift to prosecute, register, perfect, or record its rights in or to any Deliverables. TripleLift is and shall remain, the sole and exclusive owner of all right, title, and interest in and to materials provided to Service Provider by TripleLift, including all Intellectual Property Rights therein. “Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
4. Term, Termination and Survival.
4.1 This Agreement shall commence as of the Effective Date of the applicable Statement of Work and shall continue thereafter until the completion of the Services under such Statement of Work unless sooner terminated pursuant to this Section 4. TripleLift, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, at any time without cause, and without liability except for required payment for services rendered, and reimbursement for authorized expenses incurred, prior to the termination date, upon written notice to Service Provider.
4.2 Either Party may terminate this Agreement, effective upon written notice to the other Party, if such other Party: (a) materially breaches this Agreement or the Statement of Work, and such breach is incapable of cure, or with respect to a material breach capable of cure, the other Party does not cure such breach within 10 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors or (f) 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.
4.3 Upon expiration or termination of this Agreement for any reason, Service Provider shall (a) deliver to TripleLift all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services for which TripleLift has paid and (b) deliver to TripleLift, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on TripleLift’s Confidential Information.
4.4 The rights and obligations of the Parties set forth in Sections 3, 4, 6, 7, 9, 11, 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.
5. Independent Contractor. It is understood and acknowledged that the Services which Service Provider will provide to TripleLift hereunder shall be in the capacity of an independent contractor and not as an employee or agent of TripleLift. Service Provider shall control the conditions, time, details, and means by which Service Provider performs the Services. TripleLift shall have the right to inspect the work of Service Provider as it progresses solely for the purpose of determining whether the work is completed according to the applicable Statement of Work. Service Provider has no authority to commit, act for or on behalf of TripleLift, or to bind TripleLift to any obligation or liability.
6. Indemnification. Service Provider shall indemnify, defend, and hold harmless TripleLift and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement or the Statement of Work, and the cost of pursuing any insurance providers (collectively, “Losses”), any claim of a third party or TripleLift arising out of or occurring in connection with Service Provider’s negligence, willful misconduct, or breach of this Agreement or the Statement of Work. Service Provider shall not enter into any settlement without TripleLift’s or Indemnified Party’s prior written consent.
7.1 If the Service Provider violates any provision of this Agreement, TripleLift shall, in addition to any damages to which it is entitled, be entitled to seek immediate injunctive relief against the Service Provider prohibiting further actions inconsistent with the Service Provider’s obligations under this Agreement. To the extent a Party is required to seek enforcement of this Agreement or otherwise defend against an unsuccessful claim of breach, the unsuccessful Party shall be liable for all attorney’s fees and costs incurred by the successful party to enforce the provisions of this Agreement.
7.2 In the event Service Provider fails to satisfactorily perform any of the Services on a timely basis, TripleLift shall have the right, without prejudice to any other rights or remedies it may have under this Agreement or the Statement of Work, to take one or more of the following steps: (a) suspend Service Provider’s right and obligation to complete its performance of the Services until such time as the Service Provider is able to demonstrate to TripleLift’s reasonable satisfaction that it can satisfactorily meet its obligations under this Agreement; (b) itself provide and/or engage a replacement service provider to provide any or all of the delayed or unsatisfactory Services; and (c) withhold payment of any amounts otherwise due to the Service Provider in a sufficient amount to set off against any damages caused to TripleLift as a consequence of the Service Provider’s breach.
7.3 Except for a breach of Section 11 (Confidentiality), all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that the Service Provider’s exclusive remedy for TripleLift’s payment breach shall be its right to damages equal to its earned but unpaid fees.
8. Representations and Warranties; Compliance with Law. Service Provider hereby represents and warrants to TripleLift: (a) it has the requisite legal capacity, power and authority to execute, deliver and perform this Agreement and the Statement of Work, (c) TripleLift will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind, (d) all Deliverables are and shall be its original work (except for material in the public domain or provided by TripleLift) and do not and will not violate or infringe upon the intellectual property right or any other right whatsoever of any person, firm, corporation, or other entity, and (e) it has had full opportunity to seek advice and representation by independent counsel of your own choosing in connection with the review, interpretation, negotiation, execution and delivery of this Agreement and the Statement of Work. Service Provider is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Service Provider has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
9. Governing Law; Consent to Jurisdiction. This Agreement and the Statement of Work (and any action or proceeding arising in connection with the transactions contemplated by this Agreement or Statement of Work) shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to any conflicts of laws provisions thereof). Each of the Parties hereby irrevocably and unconditionally submits to the jurisdiction of any federal court of the United States of America or state court of the State of New York, in each case located in the Borough of Manhattan in New York, New York, and irrevocably agrees that all actions or proceedings arising out of or relating to this Agreement or the transactions contemplated hereby shall be litigated exclusively in such courts (other than actions to enforce in other jurisdictions, or appeals of orders or judgments, rendered by such courts). Each of the Parties irrevocably waives any objection which he, she or it may now or hereafter have to the laying of the venue of any such proceeding in any such court and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. Service Provider and TripleLift agree that service of process in any such action or proceeding may be effected in any manner permitted for giving of notice in this Agreement as well as any other manner permitted by applicable law.
10. Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement or the Statement of Work, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic or epidemic or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) national or regional emergency; and (f) other similar events beyond the reasonable control of the Impacted Party. Notwithstanding the foregoing, Service Provider’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions, or supplier actions or contract disputes will not excuse performance by Service Provider under this Section 10. In the event of Force Majeure Event, no further fees shall be due by TripleLift to Service Provider and any fees paid by TripleLift for Services not yet performed by Service Provider shall be promptly returned to TripleLift.
11. Confidentiality. All non-public, confidential or proprietary information of TripleLift (“Confidential Information”), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by TripleLift to Service Provider, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for Service Provider’s use in performing this Agreement and may not be disclosed or copied unless authorized by TripleLift in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Service Provider’s breach of this Agreement; (b) is obtained by Service Provider on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) Service Provider establishes by documentary evidence, was in Service Provider’s possession prior to TripleLift’s disclosure hereunder. Upon TripleLift’s request, Service Provider shall promptly return all documents and other materials received from TripleLift. TripleLift shall be entitled to injunctive relief for any violation of this Section.
12. Miscellaneous. This Agreement, including and together with any related Statements of Work, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. Notices which must or may be given pursuant to this Agreement shall be in writing by e-mail to the e-mail address of the intended recipient as set forth on the signature page in the Statement of Work or such other e-mail address as may be supplied by the intended recipient to the other party hereto by written notice in accordance with this notice provision. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. No amendment to, or modification of this Agreement or the Statement of Work is effective unless it is in writing and signed by an authorized representative of each Party. No modification, amendment or waiver of any provision of this Agreement, or consent required hereby, nor any consent to any departure herefrom, shall be effective unless it is in writing and signed by the parties hereto. Service Provider shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of TripleLift. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Service Provider of any of its obligations hereunder. TripleLift may at any time assign or transfer any or all of its rights or obligations under this Agreement without Service Provider’s prior written consent. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.