BW Events LLC

Master Services Agreement

This Master Services Agreement (the “Agreement”) is a binding contract between you (“Client) and BW Events, LLC (“Company”).  This Agreement governs your access to and use of Company’s event technology consulting services for aligning, architecting, configuring and project managing event technology solutions (the “Services”).  

BY EXECUTING A STATEMENT OF WORK TO PURCHASE THE SERVICES OR BY ACCESSING OR USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

In consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:

1. Definitions.

“Agreement” has the meaning set forth in the preamble.

“Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

“Authorized Service Recipients” means the Affiliates of Client identified as such on a Statement of Work.

“Change Order” has the meaning set forth in Section 7.1.

“Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

“Client” has the meaning set forth in the preamble.

“Client Materials” means any documents, data, know-how, methodologies, software, and other materials provided to Company by Client.

“Deliverables” means all documents, work product, and other materials that are delivered to Client hereunder or prepared by or on behalf of Company while performing the Services, including any items identified as such in a SOW.

“Disclosing Party” means a party that discloses Confidential Information.

“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.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

 “Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and court costs and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.

“Statement of Work” or “SOW” means each service ordering document signed by the duly authorized representatives of both parties which references this Agreement, identifies the Services ordered by Client from Company, sets forth the price for the Services, and contains other appliable information, or terms and conditions.  

“Term” has the meaning set forth in Section 6.1.

2. Services. Company shall provide the Services to Client and its Authorized Service Recipients as described in more detail in each SOW in accordance with the terms and conditions of this Agreement. Each SOW shall include the following information, to the extent applicable: (a) a description of the Services to be performed pursuant to the SOW; (b) the date upon which the Services will commence and the term of the SOW; (c) the fees to be paid to Company under the SOW; (d) a description of any Deliverables and any applicable delivery date for such Deliverables (“Completion Date”); and (e) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to the SOW.  
3. Company Obligations.

1. Company is responsible for all Company personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
2. Company will promptly and timely perform its obligations, including according to any timetables, milestones or other requirements outlined in a SOW.  

4. Client Obligations.

1. Client shall:

1. cooperate with Company in all matters relating to the Services;
2. respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement or any SOW; and
3. provide such information as Company may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects.

2. If Company’s performance of its obligations under this Agreement or any SOW is prevented or delayed by any act or omission of Client, or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

5. Contract Price. For performance of the Services and rendering the Deliverable, Client shall pay to Company all fees due under the applicable SOW. Travel-related expenses will be invoiced to Client on a pass-through basis and supported with appropriate documentation, which shall be made available to Client upon request.
6. Term and Termination.

1. Term. This Agreement will commence as of the Effective Date and continue thereafter until the completion of the Services under all SOWs, unless sooner terminated pursuant to this Section 6.
2. Termination by Company. Company shall have the right to modify, reject, or terminate any SOW and any related work in process with five (5) days written notice to Client. 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. Upon settlement of funds due to Company, all Client Materials will be returned to Client and all Client use rights in the work in process as described in Section 9 will be transferred to Client.
3. Termination for Cause. Either party may terminate this Agreement, or any SOW, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:

1. Materially breaches this Agreement, and such breach is incapable of cure or, with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
2. (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed 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. Effect of Termination or Expiration. Upon expiration or termination of this Agreement for any reason: 

1. Company shall (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Customer has fully paid and all Client Materials in its possession, and (ii) transfer to Client all use rights in the foregoing Deliverables as described in Section 9.
2. Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other party’s Confidential Information, (ii) permanently delete all of the other party’s Confidential Information stored electronically in any form, including on computer systems, networks, and devices such as cell phones, and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided, however, that Client may retain copies of any Confidential Information of Company incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.

5. Survival. The rights and obligations of the parties set forth in this Section 6.5 (Survival), Section 9 (Intellectual Property Rights; Ownership), Section 10 (Confidential Information), Section 11 (Representations and Warranties), Section 6.4 (Effects or Termination or Expiration), and Section 16 (General) shall survive expiration or termination of this Agreement.

7. Change in Services.

1. If Client desires changes to a SOW, Client shall submit to Company details of the requested change in accordance with the notice provisions in Section 16.2.  Company shall, within a reasonable time after receiving a Client-initiated request, or at the time that Company initiates a change request, provide a written estimate to Client of the impact of the requested change on the existing SOW. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”).    
2. 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 before Company begins work on the new SOW. Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 7.1.

8. Payment of Services.  

1. In exchange for Company’s Services under this Agreement, the Client shall pay Company the fees set forth in the applicable Statement(s) of Work. Company will submit a final invoice to Client for all Services rendered by the Completion Date and Client shall pay within thirty (30) days of the date of the invoice.  If Client fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount per the SOW  
2. Where the Services are provided on time and materials basis:

1. The fees payable for the Services shall be calculated in accordance with the Company’s hourly fee rates set forth in the applicable Statement of Work;
2. Company shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month.
3. The parties agree that after the initial twelve (12) months of the Term, Company may increase its standard fee rates specified in the applicable Statement of Work upon written notice to Client.

3. Where Services are provided for on a fixed price basis, the total fees for the Services shall be the amount set out in the applicable Statement of Work.
4. Client is restricted from using any form of a Deliverable until final payment is received. Company shall have the right to withhold the Deliverable while the parties attempt to resolve the disputes.
5. Client agrees to reimburse Company for all reasonable and out-of-pocket expenses incurred by Company in connection with the performance of the Services.  
6. Client 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 Client hereunder. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Client’s account, and Client hereby agrees to pay such taxes; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

9. Intellectual Property Rights; Ownership. To the fullest extent permitted by law, Company retains ownership in all Intellectual Property rights of the Deliverable. Further, Company retains all ownership and Intellectual Property Rights to the raw video footage, music, images, and other components comprising the Deliverable for its future use. Upon full payment of the Deliverable, Company grants Client and its Authorized Service Recipients a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use, copy, reproduce, display, or distribute the Deliverable for the remaining Term of the Agreement. Client shall retain sole ownership of all Intellectual Property Rights in connection with any Client Materials it provides to Company for use within the Deliverable. Client’s license to use the Deliverable shall be dependent upon Client providing Company with a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use, copy, reproduce, display or distribute the Client Materials used within the Deliverable for the remaining Term of the Agreement. In no event will Company be liable for any claims related to or arising from Client’s improper use of the Deliverable or the music, images, and other components that comprise the Deliverable or work in process.
10. Confidential Information.

1. The Receiving Party agrees:

1. not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 10.
2. to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Client, to make use of the Services and Deliverables;  
3. to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
4. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide.

1. prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy;
2. reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
3. If, after providing such notice and assistance as required herein, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

11. Representations and Warranties.

1. Each party represents and warrants to the other party that:

1. it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
2. it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
3. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
4. 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.

2. Company represents and warrants to Client that any materials used in 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.
3. Client represents and warrants to Company that any materials provided to Company by Client for incorporation into the Deliverable will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any Law.
4. Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.

12. Indemnification.  

1. Client shall defend, indemnify and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or related to any claims, suits, actions, or proceedings (“Action”): (i) regarding elements or materials provided by Client and incorporated into the Deliverable; and (ii) Client’s unauthorized use of any music, images, or other materials comprising the Deliverable(s).
2. Client shall promptly notify Company in writing of any Action. Client shall not settle any Action in a manner that adversely affects the rights of Company without Company’s prior written consent.

13. Limitation of Liability. COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOSS OF GOODWILL OR REPUTATON, 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 ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. 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.
15. Force Majeure. Neither party shall be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control, including but not limited to: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, natural disasters, strikes, fire, explosion or generalized lack of availability of raw materials (“Force Majeure”). For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in the market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.
16. General.

1. Neither party shall assign or transfer any rights or obligations hereunder without the prior written consent of the other party, except that Company shall have the right to assign any or all of its rights or obligations under this Agreement without written consent to any affiliate, or in connection with a merger, consolidation, sale or acquisition of at least a majority of Company’s assets or outstanding voting securities. Subject to these limitations, this Agreement shall inure to the benefit of and be binding upon the parties and their successors and assigns.
2. Any notice or consent under this Agreement must be in writing to the address specified below, must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and shall be deemed to have been given upon receipt.
3. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, 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. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
4. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties.
5. This Agreement, together with all Schedules, Exhibits, and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, the applicable Statement of Work; (b) second, this Agreement; and (c) third, any Exhibits and Schedules to this Agreement.
6. 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.

17. 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 Delaware 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 Mountain View, California, and each party irrevocably submits to the jurisdiction and venue of such courts.
18. Remedies. Company reserves all remedies available at Law or equity for any disputes that arise under this Agreement. In the event of a suit or proceeding under this Agreement, Client agrees to pay all attorneys’ fees if the federal or state court renders judgment substantially in Company’s favor.