MASTER SERVICES AGREEMENT
CONFIDENTIAL
Last Revised: April 10, 2018
- Introduction. This is the Master Services Agreement (this “Agreement”) referenced in the Service Order entered into by Prodege and you, the person(s) or entity executing such Service Order. This Agreement can be found at https://www.prodege.com/promotionsMSA. In this Agreement, when we say “we,” “our,” “us,” we’re referring to Prodege, LLC and all of its successors, assigns, licensees, agents, partners and affiliates. In addition to the terms and conditions discussed in this Agreement, this Agreement may also include additional terms and conditions expressly and mutually agreed upon by the parties in writing (including emails) between you and an authorized representative of Prodege. In the event of a conflict between this Agreement and any additional terms agreed to in writing, the terms of this Agreement shall control unless expressly stated otherwise in such conflicting additional terms. This Agreement may be modified by Prodege at its sole discretion at any time. Prodege shall notify you of any material changes to the terms hereto in writing and you shall have seven (7) days to either accept such terms or terminate the Agreement; failure to terminate this Agreement in writing within 7-days of our delivery of such notice shall represent to both parties that you agree to such changes.
- Services and Compensation. Prodege desires that you provide certain promotional activities to Prodege in connection with Prodege’s business. Such activities are detailed in the Service Order and/or other mutually agreed upon writings. Examples of promotional activities shall include, without limitation, on-camera appearances, written commentary, testimonials, endorsements and other activities (“Content’). When requested by Prodege in writing, you agree to provide to Prodege copies, links, files, tapes and/or any other appropriate materials relevant to your promotional activities that would enable Prodege to republish, reference, modify and/or make any other use of such Content for any business reason that Prodege deems appropriate in its sole discretion for no additional consideration; provided that Prodege shall, in extraordinary circumstances, cover the reasonable costs of the provision of such materials.
- Term. This Agreement shall be effective as of the date you accept this Agreement and shall continue to apply for the duration of the latest active and executed Service Order or unless otherwise terminated in accordance with the terms of this Agreement. We may, at any time, for any reason or no reason, with or without notice to you and without liability whatsoever, terminate this Agreement and/or your services (i.e. our relationship with you). You may terminate your services for any reason or no reason on thirty (30) days written notice to us. Notwithstanding any termination of either this Agreement or any Service Order, all licenses and rights granted to us hereunder prior to any termination shall survive in perpetuity.
- License and Rights. You give Prodege the irrevocable and perpetual rights, throughout the universe, to use your name, likeness, voice, biography, characteristics, and sobriquet (your “Name & Likeness”), as well as the Content, in any format (known now or devised in the future) without inspection or further compensation or approval. These rights include, but are not limited to, our right to depict, portray, impersonate, or simulate you and your Name & Likeness and/or the Content in any manner and in any medium (whether that be in a fictional manner, or completely or partially based on facts about you) so long as our use does not, in our reasonable discretion, disparage you. Prodege may at its option produce materials that contain some or all of your Name & Likeness and/or the Content (the “Output”). The Output is the exclusive property of Prodege and may include, but shall not be limited to, any motion pictures, photos, negatives, proofs, skits, sketches, cartoons, bloopers, out-takes, videos, layouts, transparencies and advertising materials that entirely or partially include your Name and Likeness and/or the Content, or any derivatives thereof. Content and any other material you provide to us in connection therewith are considered “works made for hire.” If any Content you provide is deemed by a court of competent jurisdiction not to be “works made for hire” then you agree that all right, title and interest in and to the Content shall immediately and automatically be assigned to Prodege by you.
- Acknowledgements. In addition to all of the other terms and conditions in this Agreement, you understand and acknowledge all of the following:
- Prodege makes no warranty, representation or guarantee of any kind, express or implied, in fact or in law relating to its products, services, the Content or any Output or outcome of performance;
- Prodege does not endorse, is not responsible for, your Content or any Output or outcome of your performance;
- Prodege does not endorse, is not responsible for, and cannot protect you from or against any of the views, critiques, or comments (negative or otherwise) people may make regarding the Content, your Name & Likeness or any Output.
- You may be obligated, for tax purposes, to report as income all compensation received by you pursuant to this Agreement. We reserve the right to require you to promptly provide or execute, upon our request, any tax documents and other documents relevant and/or necessary to your on-going engagement with us in connection with this Agreement.
- Your Promises. You represent all of the following are and shall remain true during the Term of this Agreement:
- You (and anyone providing services hereunder on your behalf) are at least 18 years old (or you have disclosed to us that you [or such minor] are less than 18 years old and have obtained the appropriate consent from us and the applicable parent or guardian to participate in connection with the Content);
- You have the authority to give Prodege the rights discussed in this Agreement on behalf of yourself and your affiliates participating in the services contemplated by this Agreement;
- Prodege’s use of the Content, your Name & Likeness and its exercise of the rights granted to Prodege under this Agreement will not violate nor infringe any rights of any third party;
- You will abide by all applicable laws, rules and regulations, including, without limitation, U.S. federal and state laws, in fulfilling your obligations hereunder;
- You lawfully possess the right to all equipment and content necessary for your services;
- In connection with your participation, you will promptly provide us with the agreed upon Content;
- Any use of the Content by you, or any third party to whom you grant access to, will in no way be or reasonably considered to be disparaging towards Prodege;
- The Content will not contain any nudity or content that is defamatory, libelous, threatening, harassing, abusive, pornographic, obscene, vulgar, profane, violent, indecent, or content that is otherwise offensive or that would be considered objectionable by a reasonable person; and
- The Content is either of you, is your own or you are authorized to use it – and allow Prodege to use it — without restriction and without obligation to anyone whatsoever such that our use of the Content (including the elements found therein) shall not infringe any third-party rights nor accrue any sort of financial obligation to you or any third-party. You understand that we are relying on these promises in connection with our use of the Content, your Name & Likeness and any related Output.
- Confidentiality. Except as is required by law or legal process, you agree that (i) neither you nor your affiliates will disclose to any third party or use any confidential or proprietary information disclosed to you by Prodege except as expressly permitted under this Agreement or by prior written consent from the other party and (ii) you will take all reasonable measures to maintain and protect the confidentiality of all of Prodege’s confidential and/or proprietary information that is in your knowledge, possession or control, which will in no event be less than the measures you use to maintain the confidentiality of your own information of similar importance and confidence. The terms of all Service Orders and other agreements between us as well as all of our non-public business information are deemed confidential. Notwithstanding the foregoing, you may disclose the terms of this Agreement to your agent, attorneys and financial advisors. This Paragraph shall survive the termination or expiration of any Service Order or this Agreement.
- FTC Compliance. Without limiting anything contained herein, you agree to strictly abide by all applicable Federal Trade Commission guidelines and rules including, without limitation, 16 CFR part 255; Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guidelines”), which are incorporated herein and made a part hereof. The Endorsement Guidelines require that, among other criteria, material connections between advertisers and endorsers be disclosed. For the purposes of this Agreement, you are considered an endorser and we are considered an advertiser. Accordingly, in certain instances you may be required to expressly disclose the fact that you are receiving or will receive financial or in-kind compensation from Prodege in exchange for the Content or an endorsement. Among other criteria set forth in the Endorsement Guidelines, your disclosure must (a) unambiguously state that you are or will receive from Prodege financial or in-kind compensation for the Content; and (b) be included on any web page on which you make available the Content or any content or material designed to promote the Content. Nothing contained in this Agreement is intended to provide guidance or legal advice on how to comply with your endorsement obligations found herein, nor does it guarantee that if you follow the Endorsement Guidelines or anything mentioned in this Paragraph that you will be in compliance with relevant FTC policy. You are advised and you acknowledge that you have had the opportunity to (i) consult the applicable FTC regulations and/or seek and obtain legal advice and guidance on how the FTC regulations (including the Endorsement Guidelines) apply to you and any other activities for which you receive compensation from us. For your reference, information on the Endorsement Guidelines may found on the FTC’s website at http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf. IF YOU HAVE ANY DOUBT AS TO YOUR DISCLOSURE OBLIGATIONS, IT IS RECOMMENDED THAT YOU CONSULT A QUALIFIED ATTORNEY FOR ADVICE. FOR YOUR REFERENCE, HERE’S A LINK TO THE FTC’S FAQ SECTION: HTTP://WWW.FTC.GOV/TIPS-ADVICE/BUSINESS-CENTER/GUIDANCE/FTCS-REVISED-ENDORSEMENT-GUIDES-WHAT-PEOPLE-ARE-ASKING.
- Indemnification. You agree to indemnify, defend and hold Prodege and its successors, assignees, directors, employees, customers, distributors, independent contractors, suppliers, licensees, agents and/or affiliates, harmless from and against all actions, suits, proceedings, judgments, demands, claims, liabilities, losses or expenses whatsoever (including, but not limited to, reasonable attorneys’ fees) incurred in connection with, arising from, or incident to (a) any claim that the Content associated with you violates or otherwise infringes the rights of any third party; (b) any misrepresentation of a representation or warranty or breach of covenant and agreement made by you in relation to this Agreement; (c) any claim related to you, including, without limitation, claims for invasion of privacy, infringement of your rights of publicity, defamation, consumer protection violations and/or any personal or property rights; and (d) any harm done to any third-party resulting from your services.
- Relationship. The relationship between you and Prodege under this Agreement is that of an independent contractor. Nothing in this Agreement should be construed as creating any joint venture, partnership, employee/employer nor an agency relationship of any kind.
- Severability. In the event a court declares any term in this Agreement to be invalid or otherwise unenforceable, then we agree to consider that term deleted, but all of the other terms of this Agreement will remain in full force and effect. We may replace the deleted term with a new term that most closely reflects our intentions, provided that the new term does not conflict with the court’s determination regarding the deleted term.
- Termination. Notwithstanding anything to the contrary in any Service Order or other agreement between the parties, if you fail to perform any portion of the Commitment for any reason other than for reason of our early termination of this Agreement for convenience, you shall be obligated to promptly refund (pro-rata) any amounts paid for the unperformed portion of the Commitment. Prodege’s decision on all matters arising under this Paragraph shall be conclusive.
- Professional Rendition of Services. You agree to render Content in a competent manner to the best of your ability, and that all of the services will be subject to Prodege’s reasonable approval and guidance. When required, you agree to comply with whatever approved scripts and reasonable instructions, suggestions and recommendations Prodege may give to you in connection with the rendition of your services. You further agrees that any endorsement of product(s) shall reflect your honest opinions, findings, beliefs or experiences.
- Liability. Under no circumstances will Prodege be liable to you for any special, consequential, indirect and exemplary and/or punitive damages, or for loss of good will or business profits. You agree that the only remedy available to you hereunder shall be monetary damages. For avoidance of doubt, you hereby waive all rights to injunctive or equitable relief.
- Arbitrations; Governing Law. By entering into this Agreement, you are limiting your rights to resolve disputes. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to its conflicts of law principles. For any dispute or claim arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, either party shall submit such matter to be determined by binding arbitration in Los Angeles, California before a single arbitrator, administered by, and in accordance with, the then-applicable Commercial Arbitration Rules of the American Arbitration Association (AAA) or the then-applicable Streamlined Arbitration Rules & Procedures of JAMS. In any such arbitration each party shall cover its own costs and expenses, including, attorneys’ fees. Judgment on the award may be entered in any court having jurisdiction, and either party may seek provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding any provision with respect to governing law, such arbitration shall be subject to and governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
- Miscellaneous. This Agreement contains the entire understanding and agreement between the parties with respect to the subject matter hereof. This Agreement cannot be modified or amended by you without Prodege’s expressed prior written approval. If any provision of this Agreement is held to be invalid, then the remaining provisions shall nevertheless remain in full force and effect. Prodege may assign or transfer this Agreement and all or any part of the rights hereunder to any person, firm or corporation without limitation.