Groupiehead Clients:  Please read and sign the agreement below.  if you have any questions or concerns, please contact us.

    Master Services Agreement
    THIS MASTER SERVICES AGREEMENT (this “MSA”) is entered into between Groupiehead, LLC (“Groupiehead”) and the Customer who signs this MSA in the space indicated below (“Customer”). Groupiehead and Customer are sometimes referred to herein, individually, as a “Party” and, collectively, as the “Parties”. This MSA is effective as of the date signed by the Customer (“Effective Date”).
    WHEREAS, Groupiehead provides website design, website hosting, marketing, advertising, and related services (“Services”), and
    WHEREAS, Customer is interested in obtaining Services from Groupiehead pursuant to the terms of this MSA,
    NOW, THEREFORE, in consideration of the premises set forth above and the mutual promises, agreements, and conditions stated herein, the Parties agree as follows:
    1. Subject of Agreement. This MSA applies to Groupiehead’s provision of Services to Customer as described in one or more Statements of Work (“SOW”) executed pursuant to this MSA, whether entered into simultaneously with this MSA or at a later date.

    2. Construction. Each SOW automatically incorporates the terms and conditions of this MSA, including any modifications and/or amendments hereto. SOWs will be construed to give full effect to the terms of this MSA. In the event of a conflict between the terms of an SOW and the terms of this MSA, the terms set forth in this MSA control.

    3. Fees and Payment Terms. Customer agrees to pay all fees, taxes, and other charges set forth in each SOW pursuant to the schedule set forth in that SOW. In the event the SOW does not contain a payment schedule, all payments are due within thirty (30) days of issuance of an invoice by Groupiehead. If Customer fails to timely pay all amounts due under any invoice, Groupiehead shall be entitled to collect one and a half percent (1.5%) interest per month or the maximum allowable under applicable law (whichever is less) until all past due amounts are paid in full, as well as all reasonable collection costs, including attorneys’ fees.

    4. Term of Agreement. The term of this MSA is twelve (12) months commencing on the Effective Date (the “Initial Term”). This MSA will automatically renew for successive twelve (12) month terms (each a “Renewal Term”), unless one Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the end of the then-current term.

    5. Ownership of Intellectual Property Used in Providing Services.

    a. Groupiehead Intellectual Property. Groupiehead and its licensors and/or suppliers retain all right, title, copyright, trademarks, and proprietary interests in any and all development tools, know-how, trade secrets, methodologies, processes, plans, technologies, materials, computer programs, software, and other proprietary information (collectively, “Groupiehead Intellectual Property”) used in providing Services. Customer expressly agrees that:

    i. Customer obtains no ownership interest in any Groupiehead Intellectual Property; and

    ii. Customer will not take any action that jeopardizes Groupiehead Intellectual Property rights.

    b. Customer Intellectual Property. Customer owns or licenses and has the right to use all trademarks, logos, information, data, photographs, drawings, videos, graphics and other materials provided to Groupiehead and/or Groupiehead’s contractors, suppliers and/or hosting providers under this MSA, including all materials produced by any third party (“Customer Intellectual Property”).

    6. Ownership of Deliverables. Unless specifically stated in an SOW, and except for any Groupiehead Intellectual Property, upon payment of all fees owed to Groupiehead, Customer shall become the owner of any work product generated by Groupiehead pursuant to this MSA and any applicable SOW (“Deliverables”).

    7. Limited, Non-Exclusive License; Permissible Uses.

    a. Customer License to Groupiehead Intellectual Property. Customer is granted a limited, non-exclusive, non-transferrable, non-sublicensable license (the “Customer License”) to use Groupiehead Intellectual Property provided as part of the Services solely for the purposes, scope and time period set forth in each applicable SOW (“Permissible Uses”). Any use of Groupiehead Intellectual Property beyond the Permissible Uses requires Groupiehead’s explicit written consent.

    b. Groupiehead License to Customer Intellectual Property (other than Deliverables). Groupiehead is granted a limited, non-exclusive, non-transferrable, non-sublicensable license (the “Groupiehead License”) to use Customer Intellectual Property provided in connection with the Services solely for the purposes, scope and time period set forth in each applicable SOW (“Groupiehead Permissible Uses”). Any use of Customer Intellectual Property beyond the Groupiehead Permissible Uses requires Customer’s explicit written consent

    c. Groupiehead License to Deliverables. Groupiehead is granted an unlimited, non-exclusive, transferrable, sublicensable license (the “Deliverable License”) to copy, modify, distribute, publish, and process any Deliverable and any content or information contained in any Deliverable in perpetuity. Provided, however, that this Deliverable License does not include any Customer Intellectual Property, which is covered by the Groupiehead License as described in Section 7(b), above.

    8. Acceptable Use and Content Policy. Customer agrees that all services provided by Groupiehead and all Deliverables created by Groupiehead are subject to Groupiehead’s Acceptable Use and Content Policy (“AUCP”). The Groupiehead AUCP can be found at [Groupiehead website link] and is expressly incorporated herein. Groupiehead may update the AUCP at any time in its sole discretion. Customer is deemed to have agreed to any change in the AUCP unless such change directly conflicts with the use expressly set forth in any SOW, in which case the AUCP in effect on the effective date of the SOW will apply. Groupiehead may, in its sole discretion, reject and/or refuse to accept, load, post or distribute any content that violates the AUCP.

    9. Security. Groupiehead uses commercially reasonable efforts to safeguard the confidentiality, integrity and availability of the Services and Customer Intellectual Property, but no Service offered over the Internet can be 100% secure. By using the Services, Customer acknowledges and accepts the risks inherent in use of Services over or connected to the Internet, including but not limited to the risk of loss, misuse, and unauthorized access, disclosure, alteration, and destruction.

    10. Additional Service Specific Terms. Some or all of the Services provided pursuant to this MSA may be subject to additional terms unique to those Services (“Additional Terms”). Additional Terms are set forth in the attached Exhibit A and may also be included in one or more SOWs.

    11. Right to Modify or Discontinue Services. Groupiehead reserves the right at any time and for any reason to modify, temporarily or permanently, any Service (or any part thereof) in its sole discretion, provided such modification does not materially diminish the functionality of the Service. Notwithstanding the foregoing, except for routinely scheduled downtime, or as otherwise provided in this MSA, Groupiehead shall use commercially reasonable efforts to notify Customer prior to any such material modification. Groupiehead also reserves the right to discontinue the Services (or any part thereof) at the conclusion of Customer’s then-current term.

    12. Right to Subcontract. Groupiehead may use agents and/or subcontractors to perform any obligation set forth in this MSA.

    13. Customer Representations and Warranties. Customer represents and warrants that

    a. Customer has full power and authority to enter into this MSA and any applicable SOW; and

    b. Customer is the sole owner of and/or has the full power and authority to grant Groupiehead a license to Customer Intellectual Property, and the provision and use of Customer Intellectual Property in connection with the Services will not infringe or otherwise violate any U.S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure or other rights of any third party, including any third party privacy or data protection rights.

    14. Groupiehead Representations and Warranties. Groupiehead represents and warrants that:

    a. Groupiehead has full power and authority to enter into this MSA and any applicable SOW; and

    b. Groupiehead is the sole owner of and/or has the full power and authority to grant Customer a license to Groupiehead Intellectual Property, and the provision of Groupiehead Intellectual Property for use in connection with the Services will not infringe or otherwise violate any U.S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure or other rights of any third party.

    c. Except as provided in Section 10, above, during the term of this MSA, Groupiehead services will comply with the material functionality described in the applicable SOW and that such functionality will be maintained in all material respects during the term of this MSA.

    i. Customer’s sole and exclusive remedy for Groupiehead’s breach of this warranty shall be that Groupiehead will use commercially reasonable efforts to correct such errors or modify the Service to achieve the material functionality described in the SOW within a reasonable period of time.

    ii. Groupiehead shall have no obligation with respect to this warranty unless notified of a claim within thirty (30) days of the first material functionality problem.

    iii. Groupiehead shall have no obligation with respect to this warranty, and Customer may not terminate the MSA where any alleged non-conformity is due to user error as reasonably determined by the Parties after investigation.

    15. Disclaimer of Warranties. TO THE MAXIUM EXTENT ALLOWEDB BY LAW, AND EXCEPT AS OTHERWISE STATED IN SECTION 13, ABOVE, GROUPIEHEAD DOES NOT REPRESENT THAT CUSTOMER’S USE OF ANY SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT THE SYSTEM(S) THAT MAKE(S) SUCH SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY GROUPIEHEAD OR THAT THE OPERATION OF THE SERVICE WILL BE SECURE OR THAT GROUPIEHEAD OR ITS THIRD PARTY VENDORS AND SERVICE PROVIDERS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STATED IN SECTION 13, ABOVE, ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY GROUPIEHEAD. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 13, ABOVE, THE SERVICE(S) IS/ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS/ARE FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE IS SUFFICIENT FOR THE CUSTOMER’S PURPOSE.

    16. Limitations of Liability.

    a. No Consequential Damages. TO THE MAXIMUM EXTENT ALLOWED BY LAW AND EXCEPT AS PROVIDED IN SECTION 15(C), BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, AND LOST REVENUE ARISING OUT OF THIS MSA, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    b. Direct Damages Limitations. GROUPIEHEAD SHALL NOT HAVE ANY LIABLITY UNDER THIS MSA OR ANY SOW EXECUTED PURSUANT TO THIS MSA IN EXCESS OF AN AMOUNT EQUAL TO THE LAST SIX (6) MONTHS OF FEES PAID BY CUSTOMER FOR THE SERVICE AT ISSUE.

    c. Exclusions. THE LIMITATIONS OF LIABLITY SET FORTH IN SECTION 15(A) AND (B), ABOVE, SHALL NOT APPLY WITH RESPECT TO: (I) DAMAGES CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY; (II) BREACHES BY CUSTOMER OF ANY LICENSE PROVIDED PURSUANT TO SECTION 7, ABOVE; (III) CUSTOMER’S UNAUTHORIZED USE OF GROUPIEHEAD’S INTELLECTUAL PROPERTY, MATERIALS, OR ASSETS; (IV) CUSTOMER’S INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY, PRIVACY AND/OR DATA PROTECTION RIGHTS; AND (V) CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 16 BELOW.

    d. Customer’s Sole and Exclusive Remedy. DAMAGES AS LIMITED BY THIS SECTION 15 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

    17. Customer’s Indemnification Obligation.

    a. Customer agrees to defend, indemnify and hold Groupiehead and Groupiehead’s directors, officers, employees, agents, and representatives (collectively, the “Groupiehead Indemnitees”) harmless from and against any direct costs, losses, damages, liabilities, and expenses, including reasonable attorneys’ fees attributable to any claim made by a third party relating to and/or arising out of (a) Customer’s breach of any representation or warranty made in this MSA and/or applicable SOW; (b) Customer’s use of the Service(s) in violation of this MSA and/or any applicable SOW; (c) Customer’s gross negligence or willful misconduct in connection with Customer’s use of the Service(s).

    b. Groupiehead shall give Customer prompt written notice of any claim for which a Groupiehead Indemnitee seeks indemnification pursuant to this Section. Customer shall be given full control over the defense of such claim and the Groupiehead Indemnitee shall give reasonable cooperation to Customer, at Customer’s expense, in the defense thereof. Groupiehead shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. Customer shall not make any settlement of the claim that results in any liablity or imposes any obligation on a Groupiehead Indemnitee without the consent of the affected Groupiehead Indemnitee.

    c. If Customer fails to respond to the notice of claim or assume the defense of the claim, the Groupiehead Indemnitee shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of Customer, and the Customer shall promptly reimburse the Groupiehead Indemnitee for all such costs and expenses.

    18. Limitation of Time to Bring an Action. Customer agrees that any claim, action or proceeding against Groupiehead must be commenced within one (1) year following the occurrence of the event giving rise to such claim, action or proceeding, or the right to bring such a claim, action or proceeding shall be deemed forfeited and/or waived.

    19. Takedown Requests; Cease and Desist Demands. From time-to-time, Groupiehead may receive requests, demands, notices and/or court orders (including but not limited to demands under the Digital Millennium Copyright Act) to take down or remove content associated with one or more Deliverables created by and/or hosted by Groupiehead (“Take Down Requests”). Nothing in this MSA or any SOW prohibits Groupiehead from complying in good faith with such Take Down Requests, nor shall Groupiehead be liable for any damages of any type for honoring such requests.

    20. Miscellaneous.

    a. Entire Agreement. This MSA and any applicable Work Order entered into by the Parties simultaneously with this MSA constitutes the entire agreement between the Parties and supersedes all prior agreements, whether written or oral, with respect to the subject matter set forth herein.

    b. Headings. The headings in this MSA, any exhibit hereto, and any Work Order executed pursuant to this MSA are included for convenience only and shall neither affect the construction nor interpretation of any provision nor affect any rights or obligations of the Parties.

    c. No Drafting Preference. The Parties expressly acknowledge they have read this MSA, have had the opportunity to review this MSA with an attorney of their respective choice, and agree to all terms. The Parties agree that in the event of any ambiguity in this MSA, an exhibit to this MSA, or an SOW executed pursuant to this MSA, such ambiguity shall not be construed for or against any Party on the basis that such Party was or was not the drafter of same.

    d. Enforceability. If any portion of this MSA or any applicable SOW is held to be unenforceable, the unenforceable portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original expression of the Parties and the remainder of the provisions of this MSA shall remain in full force and effect.

    e. Amendment or Modification by the Parties. No amendment, modification, extension or waiver of this MSA and/or any applicable SOW will be valid unless made in writing expressly referring to this MSA and/or applicable SOW and signed by each Party and/or each Party’s authorized representative.

    f. No Waiver. The failure of either Party to insist upon or enforce strict performance of this MSA and/or any applicable SOW shall not be construed as a waiver of any provision or right. Neither the course of conduct between the Parties nor trade practice shall act to modify, strike, supplement, or amend any provisions of this MSA and/or any applicable SOW.

    g. Notices. Any notice provided for or concerning this MSA or any applicable SOW must be in writing and shall be considered delivered (a) when delivered in person to an Officer or Principal of the other Party; (b) one (1) business day after sending postage/shipping prepaid by commercial overnight delivery service.

    h. Independent Contractors. The Parties to this MSA are independent contractors, and no agency, partnership, joint venture, employment or similar relationship is intended or created by this MSA. Neither Party shall have the power to bind the other Party.

    i. Governing Law; Exclusive Jurisdiction; Venue. This MSA and any applicable SOW shall be governed by and construed in accordance with the law of the State of New York, without reference to its choice of law rules. Any action to enforce this MSA and any applicable Work Order shall be brought exclusively within the state courts sitting in Albany County, New York or the United States District Court for the Northern District of New York. The Parties irrevocably consent and waive any objection or defense based on lack of personal jurisdiction, improper venue, inconvenient forum, or any other similar objection or defense.

    j. Waiver of Jury Trial. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN A LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS MSA, ANY SOW EXECUTED PURSUANT TO THIS MSA, AND ANY TRANSACTION CONTEMPLATED IN THIS MSA OR ANY RELATED SOW.

    k. Force Majeure. Neither Party shall be liable for any failure to perform its obligations in connection with this MSA is such failure results from any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such Party’s reasonable control (including any mechanical, electronic or communications failure, but excluding any such failure caused by a Party’s financial condition, negligence or intentional conduct).

    l. Counterparts. This MSA may be executed in as many counterparts as may be deemed necessary and convenient, and by the Parties hereto on separate counterparts, each of which shall be deemed an original, but all such counterparts shall constitute but one and the same instrument.

    IN WITNESS WHEREOF, the Parties agree to be bound by the terms of this MSA:

     
    EXHIBIT A
    ADDITIONAL TERMS AND CONDITIONS
    1. Webhosting.

    a. Domain Name Registration. Groupiehead generally requests that Customers purchase and maintain their own domain names. If requested by Customer, Groupiehead, at Customer’s expense, will register and manage one or more domain names selected by Customer (“Customer Domain Names”) through a third-party domain name registry service. Customer shall own all right, title and interest in such Customer Domain Names. Unless otherwise requested by Customer, Groupiehead shall list Customer as the administrative, technical and billing contact. Unless otherwise set forth in an applicable SOW, Customer is responsible for maintenance and renewal of any Customer Domain Name registered pursuant to this MSA and any applicable SOW. In addition, the indemnification obligations set forth in Section 16 of the MSA apply to any and all third-party claims concerning any customer domain name, regardless of whether such domain name is acquired or maintained by Groupiehead.

    b. Website Backup. Groupiehead maintains a complete and current copy of any customer website hosted by Groupiehead on separate backup server. If access to the website is disrupted, Groupiehead will use commercially reasonable efforts to restore the original website and/or promote the backup website to active status.

    c. Website Availability. Groupiehead uses commercially reasonable efforts to ensure that websites hosted by Groupiehead are available through the Internet, but Groupiehead does not guarantee that websites will be continuously available. In the event a hosted website is not available, Groupiehead will use commercially reasonable efforts to restore the website as soon as reasonably possible.

    d. Website analytics. Groupiehead offers website analytics through third party software and services. Groupiehead may discontinue provision of such third party software and services (or may provide alternative software or services) in its sole discretion, at any time and for any reason.

    e. THE WARRANTIES, WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABLITY SET FORTH IN SECTIONS 13, 14 AND 15 OF THE MSA FULLY APPLY TO ALL WEBSITE HOSTING SERVICES.

    Please type your full name to agree to the terms and sign (Typing your name enters you into a legally binding agreement):