Terms of Service

These TERMS OF SERVICE (“TOS”), together with any Master Service Agreement, Statement of Work, Purchase Order, Order Form or any other document, are specifically agreed to and are included by reference by any such agreement executed between Creative Management Services, LLC d/b/a MC², a company with a principal place of business located at 15 E Midland Ave, Suite 2B, Paramus, NJ 07652, United States (“MC²”), and you, or the entity on whose behalf you are agreeing (“the Customer”). Any such document and this TOS may hereinafter collectively be referred to as “the Agreement”.

1. DEFINITIONS.

Except as expressly set forth herein, words and phrases used in this Agreement have the definitions detailed herein, or if not defined, have their plain English meanings commonly used and interpreted in the United States

2. CONFIDENTIAL INFORMATION.

(i)  In performing the services, both MC² and Customer may gain knowledge or may make available to each other confidential information which derives independent economic value from not being known to third parties, and which is subject to reasonable efforts by the respective parties to maintain its confidentiality. Such information includes, but is not limited to, data, correspondence, records, devices, inventions, notes, reports, products, specifications, drawings, blueprints, sketches, prospective sites, materials, equipment, and trade secrets; legal, financial, accounting, statistical, business operation, personnel, customer, sales, development and acquisition information; and other secret and proprietary information of Customer, its subsidiaries, affiliates and partners (“Confidential Information”). Notwithstanding anything to the contrary herein, it is understood that Confidential Information shall not include information which: (i) was known by the receiving party prior to receiving the Confidential Information from the disclosing party; (b) becomes rightfully known to the receiving party from a third-party source not known (after diligent inquiry) by the receiving party to be under an obligation to disclosing party to maintain confidentiality; (c) is or becomes publicly available through no fault of or failure to act by the receiving party in breach of this Agreement; (d) is required to be disclosed in a judicial or administrative proceeding, or (e) is otherwise requested or required to be disclosed by law or regulation, although the requirements of paragraph 4 hereof shall apply prior to any disclosure being made.

(ii)  During the term of the Agreement and for a period of five (5) years from the date of its expiration or termination, each party agrees not to make copies of, distribute or disclose Confidential Information at any time, directly or indirectly, without an authorized representative from the other party’s clear and express prior written consent, and then only as needed to perform obligations under this Agreement. Such restrictions do not apply to Confidential Information: (i) lawfully and independently developed or acquired by either party without breach of a non-disclosure obligation; (ii) made known to the general public through no fault of either party; or (iii) to the extent disclosure is required by law.

(iii)  Upon this Agreement's termination and/or the written request of a party, the other party will deliver all Confidential Information in its control or possession to the originating party, and will make no use of it whatsoever at any time, except to the extent that such information is part of a regularly scheduled back up maintained in accordance with wither party’s s data retention policies.

(iv)  Both parties acknowledge that a breach of confidentiality would cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, MC² and Customer agrees that in addition to any other rights or remedies available at law or in equity, the aggrieved party may seek injunctive relief to enjoin any breach or violation of confidentiality.

3. OWNERSHIP OF DELIVERABLES.

(i)  To the extent that MC² is to provide Customer with a specific deliverable, as expressly provided in any Agreement, MC² shall convey full title to such deliverable to Customer when the deliverable is completed, such completion date is to be as determined by MC² in its sole discretion (“Deliverable”). This Agreement is not intended to govern the development of custom work product.

(ii)  Any assignments shall include those relating to existing or prospective copyrights, patent rights, trademark rights, and all other intellectual property rights in any country. MC² shall not use the Deliverables, work product, or any part thereof for any purpose other than to perform the Services under this Agreement, without the prior written consent of Customer.  Any earlier incarnation of such deliverable (including, without limitation, native or production files, earlier drafts, edits, test or beta versions, etc.) will not be conveyed to the Customer and is the sole property of MC².

4. WARRANTIES AND INDEMNITY.

(i)  Customer warrants that it: (i) is in good standing under the laws of its state of formation and is duly qualified to do business in all necessary jurisdictions; (ii)  will not be prevented from performing any of its obligations under the Agreement because of existing legal or contractual restrictions or prohibition; (iii) will perform obligations under this Agreement in full compliance with applicable laws, codes, regulations and industry standards.

(ii)  MC² expressly disclaims any warranty, representation, covenant, obligation or responsibility with respect to the suitability, quality, format or nature of any material (including without limitation, artwork) provided by Customer or any agent, representative or contractor of Customer for use by MC² in its performance of the Services.

(iii)  OTHER THAN AS EXPRESSLY SET FORTH IN THE AGREEMENT, ALL WARRANTIES BY MC², WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY, PERFORMANCE WITH REASONABLE CARE AND SKILL, AND ANY WARRANTY OF THE ACCURACY OF INFORMATION PROVIDED) ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW.

(iv)  Each party to this agreement (the “Indemnifying Party”) will defend, indemnify and hold the other party (the “Indemnitee”), its subsidiaries and affiliates, and their respective directors, officers, employees and independent contractors harmless from any claims, liabilities, obligations, damages, attorneys' and expert witness fees, charges and expenses arising from claims alleging: (a) a violation of any federal, state or local laws, ordinances, or regulations by the Indemnifying Party or its contractors, subcontractors, vendors, agents or employees; (b) any breach of any warranties or any other provision of this Agreement; and (c) negligent, reckless or willful misconduct by the Indemnifying Party in connection with the provision of Services under this Agreement, except to the extent attributable to the Indemnitee's (or its subsidiaries' or affiliates') negligent, reckless or willful misconduct. Indemnifying Party shall promptly undertake to discharge its obligations here under, including the retention of counsel reasonably acceptable to the Indemnified Parties to defend such claims.  Indemnified Parties shall have the right to participate in the defense at its own expense.  Indemnifying Party shall not enter into any settlement or compromise of a claim which requires the payment of money or admission of liability by an Indemnified Party, without their express written consent.

(v)  The Indemnitee will promptly notify the other party in writing of any event for which indemnity is sought. Failure to give prompt notice will not relieve the Indemnifying Party of its indemnity obligations except to the extent that such delay harms Indemnifying Party's position.

5. TRADEMARKS AND OTHER MATERIALS.

(i)  Customer grants to MC² a limited, non-exclusive, non-transferable royalty-free license to use all the trademarks, service marks, trade names, and logos owned by or licensed to Customer (Marks): (i) solely for its use in performing the Services and subject to this Agreement's terms and conditions and (ii) to the limited extent necessary to permit MC² to use sketches, drawings, pictures, photographs or other depictions in its promotional and marketing efforts provided that such materials are approved by Customer in writing in advance, which approval shall not be unreasonably withheld. The license is valid only as long as this Agreement is in effect, and MC² has no other right to use the Customer trademarks, service marks, trade names, and logos for any purpose at any time.

6. TERM AND TERMINATION.

(i)  The term of this Agreement shall commence on the Effective Date detailed in the Agreement and shall terminate upon the completion of the Services.

(ii)  Either party may terminate this Agreement at any time effective immediately if the other party: (a) materially breaches any warranty, term, or condition in this Agreement and fails to cure the breach within ten (10) days of receiving written notice; (b) becomes insolvent, fails to pay its debts or perform its obligations in the ordinary course of business, or admits its insolvency or inability to pay its debts or perform its obligations; (c) makes an assignment for the benefit of creditors; (d) files or has filed against it a petition in bankruptcy or any form of debtor relief relating to bankruptcy that is not dismissed within thirty (30) days; or (e) appoints or allows a receiver, liquidator, assignee, trustee, custodian, or similar official to take possession of the party or any of its property.

(iii)  In the event of termination of this Agreement, Customer will remain liable and pay MC² for any and all commitments, expenses, material orders, etc., which cannot be canceled; however, such liability shall only apply after MC² has made commercially reasonable efforts to both cancel these items and secure any available refunds. Customer shall remain liable to MC² for all completed Services. Customer will assume liability for and pay all proper charges incurred up to the time of effective cancellation, rejection, or modification. Notwithstanding these payments, Customer shall thereafter have no obligation to pay any further costs, fees, or expenses to MC² beyond the date of termination. The termination of this Agreement shall be without prejudice to any other rights or remedies available to the Customer under applicable law or equity.

7. MISCELLANEOUS.

(i)  Independent Contractor. MC² and Customer are independent contractors, and nothing will be deemed to create a partnership, employment, fiduciary, or agency relationship between them. Neither Party has any power to bind or create obligations on the other’s behalf.

(ii)  Equal Opportunity Employer.  MC² is and will continue to be an equal opportunity employer. To assure full implementation of its equal employment opportunity policy, we take measured steps to assure that persons are recruited, hired, signed, and promoted without regard to race, religion, color, national origin, citizenship, sex, veteran's status, age, or disability.

(iii)  Governing Law. All matters relating to this Agreement shall be governed, construed, and controlled by and under the laws of the State of New Jersey. In the event any civil action, arbitration, or other legal proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees, court costs, and all related expenses.

(iv)  Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns.

(v)  Notices.  All notices must be in writing and delivered in person, by reputable overnight courier, or by the United States mail (postage prepaid) to the addresses stated in the Agreement, or to another address that a Party designates in writing. Notices will be deemed received (i) immediately for in-person delivery, (ii) on the next business day for overnight courier, and (iii) at 5:00 P.M. on the third business day for U.S. mail (or the actual delivery date if earlier), as long as the intended Party actually receives the notice at the correct address.

(vi)  No Waiver.  Failure to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of such terms, covenant or condition, nor shall any waiver or relinquishment of such right or power at any other time or times.

(vii)  Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof. In the event that any provision contained in this Agreement shall be determined to be invalid, illegal or unenforceable in any respect for any reason, including, but not limited to operation of law, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions of this Agreement shall not be impaired, and there shall be substituted for said invalid, illegal or unenforceable provision with a provision that is as similar as possible and that is valid, legal and enforceable as is necessary to carry out the intent thereof.

(viii)  Changes Must Be in Writing. This Agreement may not be altered, amended, changed, modified, waived or terminated in any respect unless the same shall be in writing signed by the party to be bound.

(x)  Headings.  The Section and subsection headings appearing in this Agreement are not part of this Agreement but are for the convenience of reference only and shall not affect in any way the meaning, construction, or interpretation of this Agreement.

(xi)  Entire Agreement. This Agreement contains all of the terms agreed upon between MC² and Customer with respect to the subject matter hereof, and this Agreement supersedes any and all prior understandings, agreements, or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any manner, whether relied upon by any party hereto or not.

(xii)  Counterparts. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and such instrument for recital purposes shall be deemed to have been made, executed, and delivered on the date hereof, regardless of the actual time when the same or any counterparts thereof may be made, executed, and delivered. The parties also agree that an emailed or facsimile copy of this Agreement in portable document format (PDF) may be accepted as an original, and that these Agreements may be executed with electronic signatures by the respective parties and treated as original and admissible evidence of this Agreement.