Master Service Agreement

This Master Services Agreement ("MSA") is entered into between Konsus, Inc. (dba Superside), a Delaware corporation ("Superside"), and the Customer, as described in the applicable SOW ("Customer"), with effect from the Effective Date.

By signing the SOW, the signatories warrant that (1) they have the authority to bind the Party they represent, and (2) the Party they represent agrees to be bound by the terms and conditions set forth in this Agreement.

1. Purpose, Structure, and Interpretation of the Agreement
   1. Customer desires to subscribe to Superside in order to receive access to Superside’s: proprietary project management platform (“Superspace”); world-class creative team; and extensive array of services including: creative, design, production, project management, concept creation, strategy, consulting, and more (collectively, “Services”). Everything Superside does and provides to You is included in the “Services”.
   2. The Agreement is made up of (1) any SOW referencing this MSA; (2) this MSA; (3) the DPA as applicable; and (4) the Terms of Use, and taken as one entire agreement. If there is a conflict between any of these documents, it will be resolved by applying the documents in that order (prevailing document first). This MSA shall apply to any and all SOWs referencing this MSA and executed by Superside and any other Party (even if such other party is not a party to this MSA). Superside reserves the right to make non-material updates to the Agreement, at any time, which is available at www.superside.com/msa.
   3. In this Agreement, unless the context clearly indicates otherwise:
      1. the capitalized terms used in this Agreement shall have the respective meanings set out in “Appendix 1: Definitions” to this MSA;
      2. if a word or phrase is defined in this Agreement, its other grammatical forms, as used in this Agreement, shall have a corresponding meaning;
      3. words used in the singular include the plural and words used in the plural include the singular;
      4. the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; and
      5. the headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
2. Term and Termination
   1. The term of the Agreement begins on the Effective Date and will end on the termination of all SOWs forming part of the Agreement, unless terminated earlier in accordance with the provisions of this MSA. The term of each SOW will be for the period set out therein.
   2. Either Party may terminate the Agreement in writing with immediate effect where:
      1. one Party is in material breach of the Agreement, the other Party has given written notice requesting that the breach be cured, and the material breach remains at least thirty (30) calendar days after the aforementioned written notice of the breach was received;
      2. the Party not seeking termination is insolvent or undergoing liquidation proceedings; or
      3. in accordance with Section 30 (Force Majeure) (each of (i), (ii) and (iii) a “Termination for Cause”).
3. Fees
   1. As consideration for making the Services available to You; for any Credits that You may purchase; for assuming all duties, responsibilities, and obligations required by the Agreement; and/or for any additional amounts that might arise in terms of the Agreement, You will compensate Superside in accordance with the terms of the Agreement.
   2. You are liable in full for all Fees, and utilization of Credits, regardless of Your satisfaction with the Service provided and/or usage of the Service. It is Your responsibility to request progress reports sufficiently frequently to evaluate the Service. If You are unsatisfied with any work, it is Your responsibility to inform Superside as soon as possible. Superside will then assess the work in accordance with its expected standard and, where Superside believes the work is not of an appropriate standard, restore any Credits as Superside believes appropriate. 
   3. For the avoidance of doubt, the Billing Frequency or Payment Terms will not modify or diminish the full amount of Fees payable under this Agreement, and You remain responsible for payment of all Fees regardless of the invoicing or payment terms.
   4. In the event of a termination, all Fees must be paid up to the end of the current Agreement Term.
4. Credits
   1. Superside may offer You, and You may purchase from Superside, Credits. Credits are allocated in accordance with the terms of the applicable SOW. Once purchased, Credits have no monetary value and cannot be converted back to currency. Credits cannot be transferred between months nor to other subscriptions.
   2. Superside utilizes Credits in the provision of the Services. The number of credits utilized is at Superside’s discretion and is based on factors including the value, time, complexity, urgency, and/or cost to Superside of delivering the Service. The examples of Credit usage, and the relationship between Credits and hours, in our marketing and sales materials and discussions, are for illustrative purposes only and are not binding on Superside.
   3. Estimates and quotes of the number of Credits that Superside may utilize in delivering the Service are provided only as a guide. Superside does not guarantee that the Services will be delivered within the estimate or deadline provided.
   4. Credits expire in accordance with the terms of the applicable SOW. Notwithstanding the foregoing, all Credits expire at the end of the last Agreement Term or on the termination of the Agreement, whichever occurs earlier. Expired credits are forfeited and can no longer be utilized.
5. Overage Credits If You run out of allocated Credits, any additional Services that Superside provides will incur “Overage Credits” until additional Credits are allocated. Overage Credits will be charged in accordance with the applicable SOW. Overage Credits will be invoiced separately at the beginning of the month after the Services are provided, and may not be set off against any other amounts. You are responsible for managing the number of Credits available to You and avoiding any Overage Credits should You so wish. You are liable for any Overage Credits used despite any request to be notified of or to avoid Overage Credits.
6. Pricing and Price Changes
   1. Superside reserves the right to change the Services, Fees, and/or any other aspect of the Agreement with effect from the beginning of the next Agreement Term, by providing written notice thereof to You at least thirty (30) calendar days before the end of the current Agreement Term.
   2. Overage Credits are regarded as optional Services and can be avoided at Your discretion. Accordingly, Superside reserves the right to change the cost of Overage Credits with effect from the beginning of the next calendar month, by providing written notice thereof to You. If You incur Overage Credits after the aforementioned effective date You will be deemed to have consented to the notified cost of Overage Credits.
7. Payment
   1. The total amount of Fees described in each SOW must be paid in accordance with the Payment Terms thereon. The first invoice will be sent immediately after signing each SOW. Invoices must be paid in full, within the Payment Terms set out above.
   2. Payment must be made by credit card, check, or bank transfer. All payments must be made in United States Dollars. You shall have no right to set off or withhold any amounts under the Agreement. You shall be responsible for all taxes associated with the Services other than United States taxes based on Superside’s net income.
   3. Payments made by bank transfer must be made to the following account: Account Name: KONSUS INC Account Number: 931766569 Business Address: 1201 N Market St Ste 111, Wilmington, DE 19801 Bank Name: JPMorgan Chase Bank Address: 383 Madison Ave, New York, NY 10017, United States Routing & Transit: 021000021 Account Type: Business Checking Swift Code: CHASUS33 Reference: [the invoice number]
   4. Physical checks must be addressed to Konsus, Inc. and mailed to the lockbox address below: KONSUS INC. P.O. Box 737396 DALLAS, TX 75373-7396
   5. The following applies to Customers who choose to use a credit card as their payment method. Superside has integrated with Stripe, a validated Level 1 PCI DSS Compliant Service Provider, for PCI Compliant storing of credit card information and processing of payments. Stripe may make a temporary charge to credit cards added to Your Superside account. Any such charges are refunded after Your credit card has been verified. The refund may take several business days depending on Your bank or credit card service. Should You wish to use a Credit Card as a payment method, You hereby authorize Superside to run, or have run, credit card authorizations on all credit cards provided by You, to store credit card details as Your method of payment for Services, and to charge Your credit card (or any other form of payment authorized by Superside or mutually agreed to between You and Superside).
   6. If any outstanding amount is more than thirty (30) days overdue from Payment Terms, Superside reserves the right to: (i) accelerate the payment of all future Fees in terms of the Agreement which, regardless of the Billing Frequency and Payment Terms, will all become immediately due and payable; (ii) charge one and one half percent (1.5%) interest per month on the outstanding balance, or the maximum permitted by law, whichever is lower, from the date due until paid; (iii) send such outstanding amounts to a debt collection agency; (iv) recover from You all expenses of collection; (v) withhold any Services until all invoices have been paid in full and such withholding of Services shall not be considered a breach or default of any of Superside's obligations under the Agreement; and/or (vi) terminate the Agreement with immediate effect, in which case You shall remain liable for all Fees up until the date of termination.
   7. If You believe that Superside has billed You incorrectly, You must contact Superside no later than thirty (30) days after delivery of the invoice. Inquiries must be directed to payment@superside.com.
8. Purchase Orders Should You request a purchase order number to be included on the invoice, You are responsible for providing the Purchase Order number to Superside at least seven (7) calendar days before the invoice will be sent out in accordance with this Agreement. Your failure to furnish a purchase order number does not affect the validity or enforceability of this Agreement. Superside reserves the right to invoice without a purchase order where a valid purchase order has not been provided by the time of invoicing.
9. Refunds Except as expressly provided in the Agreement, all Fees are non-cancellable and non-refundable. You will only be entitled to a refund if (a) You terminate the Agreement in terms of Section 2(b) (Termination for Cause) or (b) if You terminate an SOW in terms of an opt-out provision specifically provided for therein. In such an event, You will be refunded any portion of the Subscription Fee that You have paid in advance relating to the period after the termination date (“Prepaid Amount”), less any unpaid Overage Credits, and less any Discounts (“Refund”). The Refund will be due within thirty (30) days of the end of the calendar month in which the termination date occurred. Should the unpaid Overage Credits and/or Discounts exceed the Prepaid Amount, Superside will invoice the outstanding amounts.
10. Restrictions of Use You will not, (a) directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Superside or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
11. Availability of Service and Support Superside will use commercially reasonable efforts to provide the Services. Superside does not guarantee that any deliverable provided will remain functional or compatible after delivery. Superside does not provide for or guarantee any online hosting or support service. It is Your responsibility to ensure that any electronic or online delivery or Service provided by Superside, as well as any Customer Data, account data, registration data, access data, or any other data are copied and saved to Your own location by Yourself.
12. Users and Admins
    1. You shall only provide access to the Services and/or Superspace to authorized representatives who will be deemed to be acting on Your behalf. The actions of Your Users and Admins will be binding on You.
    2. Your Users will have the rights to: add additional Users, and instruct Superside on the manner in which the Services should be performed including opening new Projects, providing feedback and instructions on existing Projects, and instructing Superside to incorporate Your Intellectual Property and Third-Party Materials into the Work Product.
    3. Your Admins will have all of the rights You have including making decisions regarding: the configuration/customization of the Service; integration with external services/applications; User management; Your subscription; additional purchases; and any other elections.
13. Artificial Intelligence
    1. Superside may use generative artificial intelligence and machine learning (individually and collectively, “AI”) during Your interactions with Superside and in the provision of the Services. We believe in transparency, and You will always be given the ability to opt out of the use of AI. However, enabling AI in the Service, or on a particular Project, can generate significant savings for You and we encourage you to enable AI wherever appropriate.
    2. If You opt out of the use of AI, Superside will ensure that, for all new Projects started thereafter, or for the specific Project for which You opted out: (i) none of Your Users will interact with AI, directly or indirectly, when interacting with Superside; (ii) no Customer Data will be provided by Superside to AI; and (iii) AI will not be used by Superside in the provision of the Service.
    3. If You opt in to the use of AI, You accept and agree to the following: (i) when interacting with Superside, Your Users may be interacting, directly or indirectly, with AI; (ii) Superside may provide Customer Data to AI; (iii) Superside may use AI in the provision of the Service; (iv) You grant to Superside the IP License in relation to the Customer Data to enable Superside to provide this IP to AI, and You warrant and represent that You have all of the necessary right, title, and interest to be able to grant this license; (v) Superside’s use of AI in this manner will not breach any of its obligations in terms of Sections 14 (Confidentiality), 16 (Data Privacy and Security), and/or the DPA (if applicable); (vi) notwithstanding anything contained in Section 15 (Intellectual Proprietary Rights), Work Product may not be protected or protectable by intellectual property law; and (vii) Superside makes no representations or warranties as to the source and history (provenance) of Work Product.
14. Confidentiality
    1. You and Superside (each a “Receiving Party”) understand that the other Party (the “Disclosing Party”) has disclosed or may disclose confidential business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Superside includes non-public information regarding features, functionality, and performance of the Service.
    2. The Receiving Party agrees:
       1. to take reasonable precautions to protect Confidential Information, and
       2. not to use or divulge to any third-party any Confidential Information (except in performance of the Services or as otherwise permitted herein).
    3. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document:
       1. is or becomes generally available to the public, or
       2. was in its possession or known by it prior to receipt from the Disclosing Party, or
       3. was rightfully disclosed to it without restriction by a third-party, or
       4. was independently developed without use of any Confidential Information of the Disclosing Party.
    4. The Receiving Party may make disclosures required by law, court order by a court of competent jurisdiction, or by any regulatory authority to which the Receiving Party is subject, provided the Receiving Party (to the extent permitted by law and reasonably practicable):
       1. provides the Disclosing Party with reasonably prompt notice of such required disclosure prior to the Confidential Information being disclosed;
       2. uses reasonable best efforts to limit the disclosure of the Confidential Information as much as practicably possible;
       3. requests confidential treatment or a protective order related to the disclosure of the Confidential Information; and
       4. allows the Disclosing Party, subject to instructions from the Receiving Party, to participate in any proceeding related to any such involuntary disclosure.
    5. Notwithstanding the foregoing, Superside may make Your Confidential Information and information derived therefrom accessible to Your Users by a website uniform resource locator (URL). Superside shall not be liable for any unauthorized access to Confidential Information shared via URL in this manner unless such unauthorized access is due to the gross negligence or willful misconduct of Superside.
    6. Superside may retain one (1) archival copy of Confidential Information, which copy shall be used only by Superside and third-parties, where an attorney-client relationship exists between Superside and any such third-party.
    7. Notwithstanding anything to the contrary, Superside shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data), and Superside will be free (during and after the term hereof) to:
       1. use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Superside offerings, and
       2. disclose such data solely in aggregate or other de-identified form in connection with its business.
15. Intellectual Proprietary Rights
    1. You may instruct that Superside incorporate any specifically identified or provided assets protected by intellectual property including literary, pictorial, audiovisual, and sound recordings (“Your Intellectual Property”) into the Work Product. When You do this, You grant to Superside, the IP License in relation to Your Intellectual Property to enable Superside to provide the Service; and You warrant and represent that You have all of the necessary right, title, and interest to be able to grant this license.
    2. Superside may incorporate literary, pictorial, audiovisual, sound recordings, and any other assets protected by copyright belonging to third parties (“Third-Party Materials”) into any Work Product. You are responsible for requesting and monitoring the exclusion of Third-Party Materials. It is Your responsibility to inform Your project manager at the outset of any Project on what license(s) and or usage(s) You will require. Superside shall bear no responsibility whatsoever should Your initial intended use for any Work Product change and should the license(s) and/or usage(s) secured for You by Superside be inadequate for Your altered intended use of any Work Product.
    3. Subject to (a) and (b) above, and to the extent that the Work Product is protectable by copyright, You shall own all applicable right, title and interest thereto by virtue of:
       1. to the maximum extent permitted by law, all Work Product shall constitute a “work made for hire”, as such term is defined in 17 U.S.C. § 101, made solely for Your benefit;
       2. where Work Product does not fall within the specifically enumerated works that constitute works made for hire, Superside hereby irrevocably assigns, transfers, and conveys, free and clear of all liens and encumbrances, the entire right, title, and interest in and to all such proprietary rights it holds in the Work Product to You; and
       3. Superside assigns to You all of its rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights”, and any and all intellectual property rights it has arising therefrom, to the extent permitted by law.
    4. You will comply with all applicable import and export control laws.
    5. Superside represents and warrants that, as of the date the applicable Work Product is presented to You, and provided the Work Product is marked as “final” and accepted by You in writing within thirty (30) days, to Superside’s Knowledge, such Work Product does not infringe or misappropriate the intellectual property rights of any third-party (the “IP Infringement Warranty”). As used herein, “Knowledge” means that Superside actually knew or ought reasonably to have known of such infringement or misappropriation.
    6. Provided that Superside may not publicize any Work Product which You have not already published or made public, You grant to Superside the IP License in relation to the Customer Data to enable Superside’s marketing efforts and/or to improve or enhance any of Superside’s services and/or product offerings, and You warrant and represent that You have all of the necessary right, title, and interest to be able to grant this license.
    7. Superside shall own and retain all right, title and interest, including intellectual property rights, in and to the following:
       1. the Services, Software, and all improvements, enhancements, or modifications thereto; and
       2. any software, applications, type fonts, know-how, processes, methodologies, inventions or other technology developed or used in connection with Services or support.
16. Data Privacy and Security
    1. Hosting and Processing. Unless otherwise specifically agreed to in writing by Superside, Customer Data may be hosted by Superside or its affiliates, or their respective authorized third-party service providers, in the United States, the European Economic Area (“EEA”), and/or the United Kingdom.
    2. Transfer of Personal Data. To the extent that Personal Data within the Customer Data originates from a User in the EEA, as further described in the Data Processing Agreement (“DPA”), Superside will ensure that, pursuant to applicable data protection laws, if personal data within Customer Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), then such transfer will only take place if: (i) the non-EEA country in question ensures an adequate level of data protection based on a decision by the European Commission; or (ii) one of the conditions listed in Article 46 or 49 GDPR (or its equivalent under any successor legislation) is satisfied; or (iii) the personal data is transferred on the basis of binding corporate rules.
    3. Data Processing Agreements. To the extent that the Parties are required to enter into a Data Processing Agreement (given the nature of the Customer Data, location of Users and other aspects of the Services), the DPA entered into by the Parties shall be (i) the Data Processing Agreement separately entered into by the Parties, or (ii) if no such separate Data Processing Agreement was entered into, the Data Processing Agreement located at www.superside.com/dpa. Upon execution of this MSA, the DPA shall be incorporated by reference herein, become a part of the Agreement, and be binding on the Parties.
    4. Subprocessors. Customer acknowledges and agrees that Superside may use subprocessors, who may access Customer Data, to provide, secure, and improve the Services. Superside shall be responsible for the acts and omissions of its subprocessors to the same extent that Superside would be responsible if Superside was performing the services of each subprocessor directly under the terms of this Agreement. A list of all Subprocessors can be found at https://www.superside.com/subprocessors.
17. Indemnification
    1. Each Party agrees to indemnify, defend, and hold harmless the other Party’s affiliates, directors, officers, employees, representatives, agents, and contractors from any direct losses, damages, or expenses (including reasonable attorneys’ fees) (collectively “Losses”) arising from or relating to any successful claim, suit, proceeding, demand, or action brought by a third-party (a “Third-Party Claim”) against either Party for actions by it or its agents relating to:
       1. failure to comply with any applicable law;
       2. gross negligence;
       3. wilful misconduct;
       4. fraud or fraudulent misrepresentation; or
       5. defamation.
    2. You will further indemnify, defend, and hold harmless Superside, its affiliates, directors, officers, employees, representatives, agents, and contractors (each a “Superside Indemnified Party”) from any Losses arising from or relating to any Third-Party Claim against a Superside Indemnified Party relating to actions by You or Your affiliates, directors, officers, employees, representatives, agents, or contractors relating to:
       1. use of the Services in violation of this Agreement;
       2. any of Your Intellectual Property and any Third-Party Materials, as laid out in Section 15 (Intellectual Proprietary Rights), or any other materials provided by Customer; and
       3. Your violation of privacy rights, unfair competition, or infringement or allegations thereof of a registered patent, registered trademark, or copyright of a third-party.
    3. Superside will further indemnify, defend, and hold harmless the Customer, its affiliates, directors, officers, employees, representatives, and agents, (each a “Customer Indemnified Party”) from any Losses arising from or relating to any Third-Party Claim against a Customer Indemnified Party relating to actions by Superside or its affiliates, directors, officers, employees, representatives, agents, or contractors relating to:
       1. any breach of the IP Infringement Warranty (an “Infringement Claim”); and
       2. any Infringement Claim related to Your use of the Software.
       3. Notwithstanding the foregoing, Superside will have no obligation under this Section, or otherwise, with respect to any Infringement Claim to the extent it is based on:
          1. any use of the Work Product not in accordance with the Agreement,
          2. any use of the Work Product that you know to be impermissible,
          3. any wilful infringement of copyright,
          4. any use of the Work Product in combination with other materials, content, or images not supplied by Superside, unless the Infringement Claim would have arisen irrespective of such combination,
          5. any modification to the Work Product not made by Superside,
          6. Your Intellectual Property, Customer Data, Third-Party Materials, or materials or content provided by You to Superside,
          7. an infringement of copyright that is not Your first infringement,
          8. any part of the Work Product that was designed in accordance with, or in response to, instructions, feedback, or input from You.
    4. THIS SECTION 17 STATES SUPERSIDE’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS.
    5. The Party seeking indemnification under this Section 17 (the “Indemnified Party”):
       1. will notify the other Party (“Indemnifying Party”) promptly in writing of any Claim for which it is seeking indemnification hereunder;
       2. will give the Indemnifying Party sole control of the defense thereof and any related settlement negotiations;
       3. will cooperate with the Indemnifying Party, at the Indemnifying Party’s request and expense, in assisting with such defense; and
       4. may not settle any Claim without the Indemnified Party’s consent (which will not be unreasonably withheld, conditioned, or delayed) if such settlement requires the Indemnified Party to admit any liability.
    6. Law permitting, these indemnifications are subject to the limitation of liability contained in this Agreement.
18. Limitation of Liability
    1. SUBJECT ONLY TO THE EXCEPTIONS CONTAINED IN SUBSECTION (D) OF THIS SECTION, NO PARTY OR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, OR CONTRACTORS, WILL BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR:
       1. ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES -- INCLUDING BUT NOT LIMITED TO ANY LOST BUSINESS OPPORTUNITY, REPUTATION, OR PROFITS -- ARISING OUT OF THE AGREEMENT (WHETHER BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY) OR ITS TERMINATION, AND IRRESPECTIVE OF WHETHER OR NOT THAT PARTY HAS BEEN ADVISED; OR
       2. ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS.
    2. THE LIABILITY OF EITHER PARTY FOR DAMAGES, OR ALLEGED DAMAGES, HEREUNDER FOR ANY AND ALL CLAIMS BY EITHER PARTY, WHETHER IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AGGREGATE AMOUNTS PAID BY YOU TO SUPERSIDE PURSUANT TO THE APPLICABLE SOW IN THE 12 MONTHS PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY, GENERALLY, AND THREE TIMES (3X) THE AGGREGATE AMOUNTS PAID BY YOU TO SUPERSIDE PURSUANT TO THE APPLICABLE SOW IN THE 12 MONTHS PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY CONTEMPLATED IN SECTION 17(C) OF THIS AGREEMENT, AS WELL AS ANY UNINTENTIONAL, VICARIOUS OR CONTRIBUTORY INFRINGEMENT CLAIMS.
    3. The Parties shall use commercially reasonable efforts to limit or mitigate damages they may suffer in connection with this Agreement.
    4. There shall be no limitation of liability for either Party where such liability stems from:
       1. bodily injury of a person,
       2. fraud or fraudulent misrepresentation; or
       3. where applicable law prevents limitation of such liability.
    5. There shall be no limitation of liability for the Customer specifically on its obligation to pay for the Services.
    6. Each provision of this Agreement that provides for a limitation of liability or disclaimer of warranties, represents an agreed allocation of the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by Superside to Customer and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of the Agreement, and each of these provisions will apply even if the warranties in the Agreement have failed of their essential purpose.
19. Insurance While this Agreement is in effect, Superside will maintain Cyber Liability and Technology E&O Insurance in the amount of at least $1,000,000.
20. Non-solicitation
    1. During Your use of the Services, and for a period of one (1) year immediately after Your last use of a Service, You agree not to solicit or induce any employee, vendor or independent contractor associated with Superside to terminate or breach an employment, contractual or other relationship with Superside, either on Your own behalf or on behalf of any other business or organization, unless You have received written approval to do so, signed by a duly authorized representative of Superside, and paid an agreed release fee. Failure to obtain a written approval will be subject to a USD $50,000 solicitation fee.
    2. The non-solicitation restrictions of this Section shall only apply to the creative, design, and project management personnel who have worked directly in the provision of the Services to You and do not apply to an advertisement placed into the public domain for a position You are hiring for, unless You have solicited, directly or indirectly, the application from that employee, vendor, or independent contractor for that position.
21. Relationship of the Parties Superside and Customer are independent contractors and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal/agent, employer/employee, or joint venturers. Neither Party, including their respective affiliates, directors, officers, employees, representatives, agents, or contractors, shall have the power or right to bind or obligate the other Party, nor shall it hold itself out as having such authority.
22. Assignment Superside may subcontract its obligations and rights to a third-party. Neither Party may assign this Agreement, or any of the rights or obligations hereunder, without the other Party’s prior written consent by a duly authorized representative. Consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in connection with a bona fide merger, reorganization, acquisition, or other transfer of all or substantially all of such Party’s assets or voting securities. Any attempted assignment or transfer in violation of this Section shall be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the Parties. There are no third-party beneficiaries to this Agreement.
23. Governing Law, Jurisdiction, and Venue This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, USA, without regard to its rules of conflict of laws and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Parties hereby irrevocably and unconditionally consent to and submit to the exclusive jurisdiction in the state or federal courts located in New Castle County, Delaware for any controversy, dispute, claim, or litigation arising out of or relating to this Agreement and the transactions contemplated hereby (and agree not to commence any litigation relating thereto except in such courts), waive any objection to the laying of venue of any such litigation in the Delaware Courts and agree not to plead or claim in any Delaware Court that such litigation brought therein has been brought in an inconvenient forum. The Parties each waive their right to a jury trial.
24. Notice for California Users Under California Civil Code section 1789.3, Users of Superside from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. To the extent allowed by applicable law, nothing in this Section shall be construed as limiting or affecting, in any way, the provisions of Section 23 (Governing Law, Jurisdiction, and Venue).
25. Complete Agreement and Modification
    1. The Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. For the avoidance of doubt, Section 14 (Confidentiality) supersedes and cancels all previous non-disclosure agreements concluded between the Parties.
    2. No change, modification, amendment, addition, or waiver (each a “Modification”) of or to the Agreement or any part thereof shall be valid unless in writing and signed by representatives of the Parties. In the case of Superside, only its CEO, CFO, Finance Director, and Head of Legal are authorized to consent to Modifications and no other persons have the power to bind Superside.
26. Enforcing Rights In any action or proceeding to enforce rights under the Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Either Party’s failure or delay to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect their right to later enforce or exercise it.
27. Severability If and to the extent that any provision of the Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the Parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
28. Representations and Warranties Each Party represents and warrants that it (i) is a legal entity duly incorporated, validly existing and in good standing, with all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (ii) is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required; (iii) shall comply with all laws and regulations applicable to the performance of its obligations hereunder; (iv) is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability to perform fully its respective obligations hereunder; and (v) has all of the necessary right, title, and interest in the relevant intellectual property to be able to grant the IP License as applicable. EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
29. Disclaimers
    1. Superside may provide advisory services to You as a component of the Services, Superside hereby disclaims any guarantee that any advice given to You will generate or contribute to Your desired result. Any advice given represents Superside’s opinions only and You accept and agree that You are solely responsible for achieving Your desired result related thereto. Where Superside’s case studies are included in the communication of such advice, results achieved in those case studies do not guarantee similar outcomes for You. Superside does not provide medical, legal, financial, or other professional advice, and any content regarding those topics is provided for informational purposes only and is not a substitute for advice from a qualified professional.
    2. Superside may, from time to time, receive customer referrals from third parties. If You were referred to Superside through such a referral, please be advised that the third party making such referral may be eligible to receive valuable consideration in exchange for Your successful retention as a Superside customer.
30. Force Majeure Except for Your accrued payment obligations under the Agreement, no Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third-party’s), trespassing, sabotage, theft or other criminal acts, cyber-attacks, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, or similar events, natural disasters or extreme adverse weather conditions (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event, and the other Party may terminate this Agreement with immediate effect if the Force Majeure Event continues for more than twenty (20) business days.
31. Ethical Guidelines
    1. Superside reserves the right, at its own discretion, to stop offering Services to individuals and companies that:
       1. are on the Norwegian Government Pension Fund (“NGPF”) ethical exclusion list, in breach of the NGPF ethical guidelines, or are actively hindering progress within diversity, equity, and inclusion; or
       2. engage in any action which brings the Customer or Superside into disrepute, contempt, scandal, or ridicule, or tend to shock, insult or offend the majority of the consuming public or any protected class or group thereof which include, but are not limited to, the following of which should be seen as representative and not an exhaustive list: (1) counterfeit or unauthorized goods; (2) illicit drugs and drug paraphernalia including any pseudo-pharmaceuticals; (3) tobacco-related, cigarette, electronic cigarette, or vaping products; (4) adult content or services; (5) unfair, predatory, or deceptive practices; (6) gambling; (7) weapons manufacturing services; or
       3. fail to fully comply with applicable anti-money laundering and terrorism financing laws, including those set out by the United States Treasury Department’s Office of Foreign Asset Control.
    2. Superside reserves the right to treat any violation of any of (i), (ii), and/or (iii) of this Section as Termination for Cause as laid out in Section 2 (Term and Termination).
32. Delivery of Notices and Consent to Service of Process
    1. The Parties mutually consent to the use of electronic means to deliver any notices, with the exception of service of process, pursuant to the Agreement, and electronic records to store information related to this Agreement and Your use of the Services.
    2. All notices and other communications required under this agreement will be invalid unless made in writing and furnished via email (in each case to the email address for the other Party set out in the SOW). The date of receipt will be deemed the date on which such notice is transmitted.
    3. Each Party agrees that its respective submission to jurisdiction and consent to service of process by registered mail is made for the express benefit of the Parties to this Agreement. With regard to any service of process related to any controversy, dispute, claim, or litigation, the Parties irrevocably consent to service of process by registered mail at the following address:
       1. Superside: CSC Global, Attn: Konsus, Inc., 251 Little Falls Dr., Wilmington, DE, USA, 19808.
       2. Customer: the address for the Customer set out in the SOW.
33. Survival of Terms All Sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty, disclaimers, and limitations of liability.
34. Execution and Counterparts It is agreed and warranted by the Parties that the individuals signing the Agreement on behalf of the respective Parties are authorized to execute such agreement. No further proof of authorization shall be required. This MSA, any SOW, and any other document forming part of the Agreement may be signed in counterparts and will be considered executed when signed by both Parties. The Parties consent to the use of signatures made via electronic means. Notwithstanding the foregoing, the DPA (as applicable) and Terms of Use will be binding on the Parties upon the execution of this MSA.

Appendix 1: Definitions

1. “Admin” means any User designated as an Admin who has additional authorizations and privileges;
2. “Agreement” means any SOW referencing this MSA, this MSA; the DPA as applicable, and the Terms of Use, and taken as one entire agreement as set out in Section 1 (Purpose, Structure, and Interpretation of the Agreement);
3. “Agreement Term” means the corresponding amount of time set out in the SOW;
4. “Claim” means any controversy, dispute, claim, or litigation arising out of or relating to the Agreement brought by either You or Superside against the other Party;
5. “Confidential Information” means confidential business, technical, or financial information relating to a Party’s business, as set out in Section 14 (Confidentiality). Confidential Information of Superside includes non-public information regarding features, functionality, and performance of the Service;
6. “Credit” refers to (as applicable) any Subscription Credit, Booster Pack Credit, or Overage Credit, or any other Credit offered by Superside;
7. “Customer” means the person or entity described as such in the SOW;
8. “Customer Data” means (a) Your Confidential Information, and (b) any other assets (including literary, pictorial, audiovisual, and sound recordings), intellectual property, information, and data provided by You and Your Users to Superside or generated by Superside in the provision of the Service, and (c) any additions or enhancements made to or derived from (a) and (b);
9. “DPA” means any applicable Data Processing Agreement (including any Schedules thereto) referred to in Section 16 (Data Privacy and Security);
10. “Effective Date” means the date on which this MSA becomes effective, being the date of last signature hereof, or the date of last signature of the SOW, or the Start Date of the SOW, whichever date occurs earliest;
11. “Fee” includes any amount charged by or payable to Superside including Subscription Fee, Service Fee, Subscription Credit Fee, Cost Per Subscription Credit, Overage Credit charges; and Booster Pack Credit Fee;
12. “Infringement Claim” means any breach of the IP Infringement Warranty, as set out in Section 17 (Indemnification);
13. “IP Infringement Warranty” means Superside’s warranty that Work Product does not infringe or misappropriate the intellectual property rights of any third party, as of the date the applicable Work Product is presented to You, provided the Work Product is marked as “final” and accepted by You in writing within thirty (30) days as set out in Section 15 (Intellectual Proprietary Rights);
14. “IP License” means a non-exclusive, fully sublicensable, worldwide, fully paid-up, royalty-free license, You grant to Superside to copy, use, reproduce, modify, make derivative works, and otherwise exploit, the applicable intellectual property. The IP License shall endure for a period equal to Your rights, ownership, or license held in the applicable intellectual property;
15. “Monthly Service Fee” means the corresponding amount of United States Dollars set out in the SOW;
16. “Monthly Subscription Credit Fee” means the corresponding amount of United States Dollars set out in the SOW;
17. “MSA” means this Master Service Agreement (including any appendices thereto);
18. “Overage Credits” means any Credits incurred for Services that Superside provides after You have run out of allocated Credits as set out in Section 5 (Overage Credits);
19. “Party” means each of Superside and the Customer individually;
20. “Parties” means Superside and the Customer collectively;
21. “Payment Terms” means the amount of time in which full payment of each invoice must be made, as set out in the SOW;
22. “Project” means an item comprising part of the Services described by a unique project identification number provided by Superside;
23. "Quarterly" means a period of three (3) consecutive months;
24. “Section” means any section of any document forming part of the Agreement. Unless specifically stated otherwise, a Section refers to the section of the same document in which the reference is made;
25. “Services” means access to Superside’s: proprietary project management platform; world-class creative team; and extensive array of services including: creative, design, production, project management, concept creation, strategy, consulting, and more as set out in Section 1 (Purpose, Structure, and Interpretation of the Agreement). Everything Superside does and provides to You is included in the “Services”;
26. “SOW” means the Statement of Work, Purchase Order, or Work Order entered into between the Parties, referencing this MSA, and forming part of the Agreement;
27. “Software” means the source code, object code or underlying structure, ideas, know-how and/or algorithms relevant to the Services or any software, documentation or data related to the Services, as set out in Section 10 (Restrictions of Use);
28. “Start Date” means the date identified as such on the SOW;
29. “Subscription Fee” means the total of all Monthly Service Fees and Monthly Subscription Credit Fees for the current Agreement Term;
30. “Superside” means Konsus, Inc. (dba Superside) with its principal place of business as set out in the SOW;
31. “Superspace” means Superside’s proprietary project management platform;
32. "Termination for Cause" means a termination made in terms of Section 2(b) (Term and Termination);
33. “Terms of Use” means Superside’s terms of use located at www.superside.com/terms-of-use;
34. “Third-Party Materials” means any literary, pictorial, audiovisual, sound recording, and any other assets protected by copyright belonging to a third party, as set out in Section 15 (Intellectual Property Rights);
35. “User” means an individual natural person who You have granted access to the Services and/or Superspace;
36. “Work Product” means any deliverable under the Agreement that is provided by Superside to You as part of the Services, marked as “final”, and that You accept in writing within thirty (30) days. For the avoidance of doubt, Work Product does not include any drafts, preparatory works, or works in progress;
37. “You”, “Your”, and “Yourself” refer to the Customer as described in the SOW; and
38. “Your Intellectual Property” means any specifically identified or provided assets protected by intellectual property including literary, pictorial, audiovisual, and sound recordings that, as part of the Service, You instruct Superside to incorporate into the Work Product, as set out in Section 15 (Intellectual Property Rights).