Effective Date: April 1, 2024
This Master Services Agreement (“MSA” or “Agreement”) is effective as of the date stated above and is entered into by Two Sparks Digital, LLC., located at 1402 Regents Park Ln, Greensboro, NC 27455, and the Client referenced in the Statement of Work (“SOW”) associated with this Agreement (“Client”). Each entity shall be referred to individually as a “Party” and collectively as the “Parties” hereinafter.
Documents Constituting Agreement: This MSA serves as the overarching agreement governing Two Sparks Digital’s provision of services and related deliverables to the Client. Each SOW, signed by authorized representatives of both Parties, outlines the specific services (“Services”), terms, specifications, and fees (“Fees”) for the particular engagement. Every SOW constitutes a separate agreement between Two Sparks Digital, LLC and the Client, incorporating the terms of this MSA. In case of any conflict between the terms of an SOW and this MSA, the terms of the SOW shall prevail concerning the Services provided therein.
Payment and Invoicing:
Consideration: In exchange for the provision of Services, the Client shall compensate Two Sparks Digital, LLC as follows:
Fees and Expenses: The Client shall pay the Fees specified in the relevant SOWs. Additionally, the Client shall reimburse Two Sparks Digital, LLC for reasonable expenses incurred during the provision of Services, including but not limited to production costs, stock imagery, talent, travel expenses, and charges from third-party suppliers.
Taxes: The Fees exclude taxes, and the Client shall bear responsibility for paying all applicable sales, use, excise, and similar taxes imposed by the United States or any state or local government on the goods and/or services provided under this MSA by Two Sparks Digital, LLC. The Parties agree to cooperate to minimize tax obligations and provide necessary tax information upon request.
Invoicing and Payment: Two Sparks Digital, LLC will issue monthly invoices unless otherwise specified in an SOW. The Client must settle all amounts before services are rendered. Any disputed amount shall be resolved within 30 days, and interest shall accrue on overdue payments at the maximum rate permitted by law.
Credit Card Payment: Two Sparks Digital, LLC will issue an additional 4% fee for all invoices paid with credit card.
Confidentiality:
Confidential Information: Both Parties may disclose commercially sensitive, confidential, or proprietary information (“Confidential Information”) to each other as necessary. The Receiving Party shall not disclose Confidential Information except to its employees, contractors, or agents involved in fulfilling obligations under this Agreement. The terms and conditions of this MSA are deemed Confidential Information and may not be disclosed without written consent. Client shall refrain from providing sensitive personal information to Two Sparks Digital, LLC unless securely transmitted, and termination of this MSA does not alleviate obligations regarding disclosed Confidential Information.
Return or Destruction: Upon request from the Disclosing Party, the Receiving Party shall promptly destroy all Confidential Information of the Disclosing Party in its possession. However, the Receiving Party may retain archived versions of such Confidential Information as necessary to comply with its data and document retention policies, provided that such retained information is not used.
Exclusions: Notwithstanding the above, Confidential Information does not include information that: (a) enters the public domain through a source other than the Receiving Party; (b) was already known to the Receiving Party prior to disclosure; (c) is independently developed by the Receiving Party; (d) is obtained from a third party not under a confidentiality obligation; (e) is authorized for disclosure by the Disclosing Party; or (f) is required to be disclosed by law, in which case the Receiving Party shall provide prompt notice to the Disclosing Party. However, exclusions (a) – (d) do not apply to TWO SPARKS DIGITAL, LLC Data, which shall always be considered Confidential Information of TWO SPARKS DIGITAL, LLC.
Safeguards: The Receiving Party shall implement reasonable safeguards to prevent unauthorized access to the Disclosing Party’s Confidential Information. These safeguards shall meet at least the standards required by applicable laws or regulations, or the Receiving Party’s own standards for protecting similar Confidential Information.
Proprietary Rights:
Client Intellectual Property & Data: All intellectual property and data provided to TWO SPARKS DIGITAL, LLC by the Client or on the Client’s behalf shall be considered the Client’s Confidential Information and shall remain the Client’s property. The Client shall ensure the accuracy and propriety of all materials provided to TWO SPARKS DIGITAL, LLC and shall be solely responsible for any associated claims.
Technology: All technology, including code, software, processes, and related know-how used or developed by TWO SPARKS DIGITAL, LLC in connection with the Services, shall be considered TWO SPARKS DIGITAL, LLC’s Confidential Information and shall remain its property. The Client is granted a non-exclusive, non-transferable license to use such technology during the term of the applicable SOW.
TWO SPARKS DIGITAL, LLC Data: All data provided by TWO SPARKS DIGITAL, LLC to its clients, including licensed data and information derived therefrom, shall be considered TWO SPARKS DIGITAL, LLC’s Confidential Information and shall remain its property.
Licensed Creative Materials: “Licensed Creative Materials” encompass third-party intellectual property integrated into deliverables where Two Sparks Digital, LLC cannot secure full rights assignment. These materials may include, but are not limited to, original photography, stock photography, fonts, illustrations, and other copyrightable works. Two Sparks Digital, LLC will notify the Client of any usage restrictions pertaining to such Licensed Creative Materials in the SOW. The Client agrees to adhere to these restrictions and indemnify Two Sparks Digital, LLC against any claims resulting from non-compliance. Specifically, regarding stock photography, the Client is granted a non-exclusive, non-transferable right to use and display such materials solely for the intended purpose outlined in the deliverables, subject to third-party license terms.
Limitations: The Client acknowledges that, unless expressly stated otherwise in the applicable SOW, it will not acquire any rights beyond its existing rights to Client Property through the Services. Additionally, the Client will not gain rights to Technology, Licensed Creative Materials, or Two Sparks Digital, LLC Data beyond the specified term in the relevant SOW. Any exceptions or clarifications regarding ongoing use rights must be addressed in individual SOWs. The Client must not publicly use exploratory or mock-up materials provided by Two Sparks Digital, LLC without clearance for third-party intellectual property. If the Client wishes to use such materials commercially, it must notify Two Sparks Digital, LLC, which will facilitate securing necessary rights.
Residual Knowledge: Two Sparks Digital, LLC retains the right to utilize general skills, ideas, concepts, know-how, and expertise acquired during the provision of Services, provided such knowledge is of generic applicability and acquired without disclosure of Client’s Confidential Information.
Media Buying: If Two Sparks Digital, LLC conducts media buying through third-party suppliers, the Client authorizes Two Sparks Digital, LLC to act as its agent in purchasing advertising and other media, binding the Client to media purchases. The Client is liable for non-cancellable contracts and commitments authorized under an SOW. Two Sparks Digital, LLC will only be liable for payments once proceeds have cleared from the Client, and the Client assumes sole liability for sums owed but not yet cleared.
Client Obligations:
Industry Compliance: The Client must inform Two Sparks Digital, LLC of any industry-specific requirements or prohibitions regarding its products and services. The Client is responsible for ensuring that all creative material complies with applicable laws, regulations, and guidelines.
Performer and Union Contracts: If the Client is a signatory to any performers’ union agreements, it must notify Two Sparks Digital, LLC accordingly. Two Sparks Digital, LLC will adhere to the Client’s directions in such cases, but the Client retains full responsibility for fulfilling the terms and payment obligations of these agreements. The Client is liable for any claims related to non-payment or underpayment of fees to performers, regardless of when such claims arise.
Campaign-Specific Terms and Conditions:
Email Marketing Campaigns: In the event of Two Sparks Digital, LLC conducting an Email Marketing campaign, the terms outlined in attached Exhibit A shall be applicable. In case of any inconsistency between this Agreement and Exhibit A, the terms of Exhibit A shall prevail.
Target Display Ad Campaigns: If Two Sparks Digital, LLC undertakes a Target Display Ad campaign, the terms specified in attached Exhibit B shall also apply. In the event of any conflict between this Agreement and Exhibit B, the terms of Exhibit B will govern.
Mutual Representations and Warranties:
Both Parties affirm that: (a) they will adhere to all relevant laws while fulfilling their respective obligations under this MSA and the SOWs; (b) they will comply with applicable privacy laws, anti-corruption, and anti-bribery regulations; and (c) they possess the authority to enter into this MSA and the SOWs.
Two Sparks Digital, LLC Warranties:
Two Sparks Digital, LLC guarantees that: (a) Services will be executed by competent personnel in a professional manner; (b) Services will conform to agreed-upon requirements and specifications; and (c) any data provided by Two Sparks Digital, LLC will be as accurate and current as reasonably achievable given customary practices and sources.
Client Representations and Warranties:
Regarding any information or content provided by or on behalf of the Client, the Client assures Two Sparks Digital, LLC that it has the legal right to disclose and utilize such materials as intended. The Client must ensure that any data provided is accurate and complies with applicable laws and agreements.
Warranty Exclusion:
Except for the warranties explicitly stated in warranty section above, Two Sparks Digital, LLC disclaims all other warranties, whether express or implied, including but not limited to merchantability, non-infringement, or fitness for a particular purpose. Two Sparks Digital, LLC will not be liable for breach of representation or warranty if caused by a third party.
Limitation of Liability:
Both Parties disclaim liability for indirect, incidental, punitive, or consequential damages arising from this MSA or any SOWs, even if advised of the possibility of such damages. Two Sparks Digital, LLC’s total aggregate liability will not exceed the fees paid under the relevant SOW, excluding pass-through amounts.
Indemnification:
Each Party will indemnify the other from losses, damages, expenses, and liabilities arising from: (a) gross negligence or willful misconduct during Services; (b) workers’ compensation claims; (c) breach of representations and warranties; and/or (d) unauthorized use of Services or deliverables.
Infringement Indemnity: Each Party agrees to indemnify, defend (at its sole cost and expense), and hold harmless the other Party, its affiliates, and their respective employees, principals, officers, directors, and agents from any losses, damages, expenses (including court costs and reasonable attorneys’ fees), judgments, fines, and other liabilities resulting from third-party claims alleging that the materials provided by such Party (“Materials”) infringe upon any patents, trademarks, copyrights, rights of publicity, trade secrets, or similar rights (“Infringement Claim”). Two Sparks Digital, LLC’s Materials include, but are not limited to, the Two Sparks Digital, LLC Data, Services, and Technology, while Client’s Materials encompass the Client Property and any documents, data, or content provided by or on behalf of Client. However, a Party shall not be liable under this section if the Infringement Claim arises from: (a) the other Party’s combination of the Materials with other products or materials; (b) use of the Materials contrary to written instructions or documentation; (c) patent infringement related to tangible deliverables provided by Two Sparks Digital, LLC; or (d) patent infringement involving patents owned by a non-practicing entity not related to the Technology. If an Infringement Claim is sustained, the infringing Party may, at its expense, obtain the right to continue using the Materials, modify the Materials to be non-infringing, or terminate the applicable SOW with notice. In case of termination, Two Sparks Digital, LLC shall refund any prepaid amounts not yet earned under the SOW.
Procedures: To seek indemnification, the indemnified Party shall promptly notify the indemnifying Party in writing of any claim or suit and provide reasonable cooperation. The indemnifying Party shall have the sole authority to defend the claim or suit at its expense, with the indemnified Party having the option to participate at its own expense. The indemnifying Party may not settle any claim without the indemnified Party’s written consent, and any settlement must be communicated promptly to the other Party.
Insurance: Two Sparks Digital, LLC shall maintain insurance policies with specified coverage amounts. Upon request, Two Sparks Digital, LLC shall provide Client with a Certificate of Insurance naming Client as an additional insured.
Term and Termination: The MSA will be effective from the Effective Date until terminated according to this section. It may be terminated if no SOWs are in effect. SOWs may be terminated with 60 days’ notice for material breaches, or immediately if a Party ceases business operations, becomes insolvent, or meets other specified conditions. Any other termination rights must be addressed in the SOW.
Effect of Termination: Upon termination of an SOW: (a) Client shall settle the full amount of the final TWO SPARKS DIGITAL, LLC invoice under the terminated SOW within 15 days of receipt. Payment of this final invoice shall not preclude any other remedies available to TWO SPARKS DIGITAL, LLC; (b) Client shall provide written instructions to TWO SPARKS DIGITAL, LLC regarding the date (to be within 30 to 90 days after termination) for the deletion of all Client data from any TWO SPARKS DIGITAL, LLC Technology system hosted by TWO SPARKS DIGITAL, LLC. Within 30 days of termination, each Party shall delete all other Confidential Information of the other Party and derived materials, except for archived versions as required by the Receiving Party’s data retention policies; and (c) all obligations of the Parties under this Agreement shall cease, except those surviving termination pursuant to Section 11.4.
Survival: All terms logically construed to survive the term of this MSA will do so.
Notices: Any required or permitted notices under this MSA shall be in writing and deemed given when personally delivered, sent by overnight courier, or registered mail to the addresses specified herein.
Subcontractors: Each Party may utilize subcontractors but remains fully liable for their acts. Client shall manage all contractual relationships with its customers and vendors.
Non-Interference with Employees: During the Term and twelve months thereafter, both Parties agree not to solicit or hire each other’s employees involved in the provision of Services under this Agreement, without prior written consent.
Miscellaneous: This MSA is governed by North Carolina law, and disputes shall be resolved exclusively in specified courts. Amendments must be in writing and signed by both Parties. This MSA, together with SOWs, supersedes all prior agreements. Terms on Client-issued documents are deemed deleted. Assignment of rights and liabilities requires written consent, except for specified circumstances. This MSA binds the Parties and their successors. It may be executed in counterparts.
Exhibit A: Additional Email Marketing Campaign Terms and Conditions
Services:
Service Description: Upon request in any applicable SOW, TWO SPARKS DIGITAL, LLC will compile a prospect list based on agreed criteria, match it with email addresses, and conduct Client’s email campaign (“Email Campaign”) to the identified consumers.
Service Execution: TWO SPARKS DIGITAL, LLC will:
1. Setup creative in the deployment system.
2. Provide a test message for Client’s approval.
3. Make revisions as per Client’s request.
4. Ensure the creative includes an opt-out mechanism.
5. Launch the Email Campaign upon Client’s approval via email.
Reporting: TWO SPARKS DIGITAL, LLC will provide post-launch program reports including open, click-thru, and delivered rates. Custom reports are available upon request at an additional charge.
Client Materials: Client must provide or approve all necessary materials for TWO SPARKS DIGITAL, LLC to execute the Services, including HTML creative, text versions, suppression files, seed lists, and necessary personalization fields.
Content Approval: TWO SPARKS DIGITAL, LLC reserves the right to review and approve Client’s email content. It may refuse to send any email it deems spam or non-compliant with applicable laws.
Intellectual Property Rights: Client grants TWO SPARKS DIGITAL, LLC a non-exclusive license to distribute the Email Campaign solely for the purposes outlined in the SOW.
Non-Disclosure: Client agrees not to disclose TWO SPARKS DIGITAL, LLC or its providers as the source of email addresses without written permission, except in specific circumstances outlined herein.
Remedies and Disclaimer: TWO SPARKS DIGITAL, LLC’s sole obligation and Client’s remedy for Email Campaign errors are corrections notified in writing by Client. TWO SPARKS DIGITAL, LLC disclaims all warranties except as expressly stated.
Limitation of Liability: TWO SPARKS DIGITAL, LLC’s liability for losses or damages arising from Email Campaigns is limited to fees paid under the applicable SOW.
Content and Email List Practices: Client is responsible for complying with all applicable laws regarding email content, including CAN-SPAM Act of 2003. TWO SPARKS DIGITAL, LLC may suspend Services for violations.
Internet Service Providers Role: Client agrees to follow ISP email standards to avoid blacklisting. TWO SPARKS DIGITAL, LLC may suspend Services if Client is blacklisted.
Unsubscribes: Client must provide unsubscribe files at least twenty-four (24) hours before mailing lists. TWO SPARKS DIGITAL, LLC will process unsubscribes received through its deployment platform.
Use of Tags/Cookies Disclosure: Client must include tracking technologies disclosure in its privacy policy. TWO SPARKS DIGITAL, LLC uses tracking technologies for optimization purposes.
Exhibit B: Target Display Ad Additional Terms and Conditions
Campaign Reports: Standard campaign reports will be provided in an agreed format.
Ad Site Requirements: Client is responsible for ensuring Ads comply with content limitations, technical specifications, and editorial policies.
Cookie Matching & Retargeting Process: Client provides PII data for cookie matching. TWO SPARKS DIGITAL, LLC uses cookies for retargeting purposes as agreed upon.
Client’s Privacy Policy: Client must maintain a privacy policy that complies with applicable laws and describes the use of cookies for targeted advertising. TWO SPARKS DIGITAL, LLC may suspend Services for non-compliance.