This Master Services Agreement (“Agreement”) is made and entered into as of today’s date (“Effective Date”) between Mogo Marketing and Media, LLC dba EDGE (“Agency”)\r\n and HUB by MogoSME Registered Account Holder (“Client”) regarding the Services (as defined below).
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\r\n \r\n 1. Services. \r\n \r\n Client hereby retains Agency to perform certain services as set forth\r\n in the HUB by EDGE Package (“SOW”), hereby incorporated by reference\r\n and made a part hereof (collectively, the “Services”). The parties generally\r\n contemplate that the Services to be rendered by Agency will consist of Agency\r\n acting as advertising, media planning/buying agency and online ad network for\r\n Client. The campaign parameters set forth in the SOW, including but not limited\r\n to campaign dates, media budgets, channels, etc., may be modified via email if\r\n mutually agreed upon by the parties. Data derived from use of the Services may\r\n be used by Agency and its Services providers (i.e. advertising platforms) in\r\n aggregated and anonymized form.\r\n
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\r\n \r\n 2. Advertising Platform Terms. \r\n \r\n “Advertising Platform Terms” means the Services\r\n providers’ (i.e. advertising platforms) terms and conditions, policies and agreements\r\n described in this Section 2 and also including such terms and conditions, policies and\r\n agreements from any other advertising platform used by Agency on Client’s behalf.\r\n Client agrees and acknowledges that the Advertising Platform Terms may be modified\r\n from time to time by the Services provider (e.g. Google, YouTube, Facebook, Twitter,\r\n LinkedIn, Snap, TikTok, Spotify, The Trade Desk, Pinterest, Yelp, etc.). Client shall\r\n be responsible for regularly reviewing the applicable Advertising Platform Terms and\r\n becoming familiar with any such modifications. Client's use of the Services after the\r\n applicable Advertising Platform Terms have changed constitutes Client’s acceptance of\r\n the new Advertising Platform Terms. Client authorizes Agency to agree to the\r\n applicable Advertising Platform Terms online on behalf of Client and make decisions,\r\n and take actions relating to the Client’s applicable advertising platform accounts and/or\r\n Agency’s own advertising platform accounts with respect to provision of the Services\r\n on Client’s behalf. All terms and conditions of the Advertising Platform Terms\r\n applicable to “Advertiser”, “advertiser”, “Client” and “you” shall be applicable to\r\n Client. Client hereby grants Agency the full right and authority to legally bind Client to\r\n the applicable Advertising Platform Terms and Client hereby agrees to be bound by the\r\n applicable Advertising Platform Terms. Client agrees to undertake and agrees to all\r\n applicable obligations, representations and warranties contemplated by the Advertising\r\n Platform Terms in order to enable Agency to facilitate the provision of the Services for\r\n the benefit of Client via the applicable advertising platform(s) pursuant to the\r\n Advertising Platform Terms. \r\n
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\r\n \r\n a. Google Terms. \r\n \r\n Agency’s delivery of the Services to Client via Google shall be\r\n subject to the Google Inc. Advertising Program Terms available at \r\n https://adwords.google.com/select/tsandcsfinder, \r\n https://policies.google.com/terms?hl=en or otherwise available at google.com and all\r\n applicable Google and Google Partner policies referenced therein, including without\r\n limitation the Google Privacy Policy, Advertising Cookies Policy, and Trademark\r\n Guidelines, and Google and Partner ad specification requirements (collectively,\r\n \"Google Terms\"), which shall constitute Advertising Platform Terms. \r\n
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\r\n \r\n c. Meta/Facebook Terms. \r\n \r\n Client shall comply with the following Meta/Facebook\r\n terms, conditions, agreements, policies and guidelines, which shall govern delivery of\r\n the Services to Client (“FB Terms”): Meta/Facebook Statement of Rights and \r\n Responsibilities (https://www.facebook.com/legal/terms); Meta/Facebook Pages Terms \r\n (https://www.facebook.com/page_guidelines.php); Advertising Policies \r\n (https://www.facebook.com/policies/ads/); and the FB Terms referenced therein, which \r\n shall collectively constitute Advertising Platform Terms.\r\n
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\r\n \r\n d. Meta/Instagram Terms. \r\n \r\n Agency’s delivery of the Services to Client via\r\n Meta/Instagram shall be subject to Meta/Instagram Terms of Use available at \r\n https://help.instagram.com/581066165581870 or otherwise available at Instagram.com\r\n and all other applicable Meta/Instagram policies, documents, terms and conditions,\r\n including without limitation, Meta/Instagram’s Privacy Policy (collectively, \"Instagram\r\n Terms\"), which shall constitute Advertising Platform Terms.\r\n
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\r\n \r\n 3. Compensation.\r\n \r\n Client shall compensate Agency for the Services by paying\r\n Agency fees and expenses in accordance with the applicable SOW. Except as\r\n otherwise provided in this Agreement, all orders placed online through Hub by\r\n Mogo require payment on order date via credit card or ACH Bank Transfer. Client\r\n shall reimburse or pay Agency in advance for all out-of-pocket expenses approved\r\n by Client or authorized by this Agreement. Client shall pay for all sales, use, value\r\n added, excise, withholding, and other similar taxes required to be paid by law with\r\n respect to the Services and expenses incurred in connection with this Agreement,\r\n excluding taxes based upon Agency’s income. In the event that Client is required\r\n by law to withhold any such taxes from any payments due hereunder, Client shall\r\n gross up the payments to ensure that Agency receives and retains the full amount\r\n of the compensation set forth on the SOW.\r\n
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\r\n \r\n 4. Campaign Budgets.\r\n \r\n Agency purchases advertising inventory and provides\r\n comprehensive ad serving Services on Client’s behalf across dozens of display,\r\n video, social, search and mobile advertising marketplaces. The pricing model is\r\n based on real-time bidding auction environments common to ad networks. These\r\n highly complex marketplaces are in a constant state of fluctuation based on supply,\r\n demand, seasonality, and audience targeting criteria. Agency’s programmatic\r\n buying platform provides visibility as to spend; however, it can be difficult to\r\n deliver planned media budgets to the exact dollar. Any HUB by EDGE\r\n Package campaign budgets that are under-spent or over-spent will not be\r\n reconciled to either Agency or Client. When Agency overspends, there is no\r\n expectation for Client to pay the overage, and/or when Agency underspends, there\r\n is no expectation for the Agency to refund the Client.. Agency may purchase media\r\n on sequential liability terms and subject to the media provider’s standard terms\r\n and conditions, so that Agency shall not be responsible for such purchases unless\r\n and until Client has paid Agency in full for such purchases. Until such time, Client\r\n shall remain solely responsible for such purchases.\r\n
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\r\n \r\n 5. Privacy.\r\n \r\n Client will ensure that visitors to its websites are provided with clear\r\n and comprehensive information about, and consent to, the storing and accessing\r\n of cookies or other information on the visitors’ devices where such activity occurs\r\n in connection with the Services and where providing such information and\r\n obtaining such consent is required by law. Client will ensure that each of its web\r\n sites contains a privacy policy that (a) discloses (i) the usage of third-party\r\n technology and (ii) the data collection and usage resulting from the Services and\r\n use of Client’s websites and (b) complies with all applicable privacy laws, rules\r\n and regulations. Client shall comply with all applicable laws, rules and regulations\r\n in connection with its use of the Services, including, but not limited to, inclusion\r\n of all privacy notices, disclosures, banners and opt outs on its website. To the\r\n extent Client receives any retargeting Services, Client represents and warrants that\r\n Client’s website (i) contains a privacy policy that (a) permits the operation of a\r\n retargeting consumer marketing program, including, but not limited to, the\r\n provision of anonymous consumer information and/or consumer email addresses\r\n to third party partners and (b) provides a link to the Network Advertising\r\n Initiative’s consumer opt-out page located at\r\n www.networkadvertising.org/managing/opt_out.asp allowing the consumer to\r\n opt-out of such retargeting programs and (ii) provides clear and conspicuous\r\n disclosure regarding such retargeting practices. Client understands that the\r\n technology required to operate the retargeting Services utilizes a pixel (“Pixel”)\r\n placed on the Client’s websites to set a cookie on the browser of visitors to the\r\n Client’s website. Client will place the Pixel on its website in accordance with\r\n Agency’s instructions and Client agrees that it shall not remove, modify or move\r\n the Pixel.\r\n
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\r\n \r\n 6. Client Obligations.\r\n \r\n Client agrees to comply with all reasonable requests of\r\n Agency and to provide access to all documents and social media/advertising\r\n platform accounts reasonably necessary to the performance of Agency’s duties\r\n under this Agreement. Client grants Agency full rights and authority to undertake\r\n advertising and media buying Services on behalf of Client and to solicit\r\n introductions to Client and its product(s) from any online media outlets. Client\r\n represents and warrants that Client has all rights, licenses, consents and\r\n agreements necessary for use of any creative content provided by Client for use\r\n with the Services (the “Client Creative”). Client represents and warrants that the\r\n Client Creative shall not infringe upon or violate the rights of any third party or\r\n any applicable law. Client shall be responsible for all materials and information\r\n provided by, on behalf of or approved by, Client for use in connection with the\r\n Services, including but not limited to, all rights to use such materials, their\r\n accuracy and completeness and information regarding its products, services,\r\n industry and competitors. Agency may rely upon all decisions and approvals from\r\n Client, and Agency shall not be liable for any matter as a result of following\r\n Client’s specific instructions. For the avoidance of doubt, Client shall hold all\r\n right, title, and interest in and to the Client Creative that are used to create the\r\n advertisements to be used in connection with the Services. Certain Services may\r\n require Client’s provision of, or access to, its customers’ (i.e. consumers) email\r\n addresses and other non-financial personally identifiable information (“Client\r\n Information”). Client represents and warrants that Client has provided and will\r\n continue to provide all notices and has and will continue to have all rights, consents\r\n and approvals under all applicable laws and in compliance with its privacy policy,\r\n to provide the Client Information to Agency to be used in connection of provision\r\n of Services hereunder, including but not limited to, the provision of proper notice\r\n to, and consent obtained from, the individuals whose email addresses are included\r\n in the upload for the purpose of certain Services.\r\n
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\r\n \r\n 7. Indemnity.\r\n \r\n Client agrees to defend, indemnify and hold Agency and its\r\n affiliates and their respective members, directors, officers and employees (the\r\n “Indemnified Parties”) harmless against any loss, cost or expense the Indemnified\r\n Parties may sustain or incur as the result of any claim, suit or proceeding made,\r\n brought or threatened against any Indemnified Party arising out of or related to\r\n this Agreement. The expenses indemnified against include reasonable attorneys’\r\n fees and costs incurred in any litigation identified above. Client shall maintain, at\r\n its own expense, comprehensive general liability insurance and such other\r\n insurance policies, and in such amounts, as are generally maintained according to\r\n standard industry practices sufficient to cover any claims in connection with its\r\n obligations under this Agreement. Client shall present insurance certificates or\r\n other proof of coverage to Agency upon written request.\r\n
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\r\n \r\n 8. Disclaimers and Limitation of Liability.\r\n \r\n TO THE EXTENT PERMITTED\r\n UNDER APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS”\r\n AND AGENCY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,\r\n INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF\r\n MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO\r\n THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO\r\n CIRCUMSTANCES WILL AGENCY BE LIABLE TO CLIENT OR ANY\r\n OTHER PERSON OR ENTITY FOR LOSS OF PROFIT, BUSINESS OR DATA,\r\n OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,\r\n PUNITIVE DAMAGES OR EXEMPLARY DAMAGES OF ANY KIND OR\r\n NATURE ARISING FROM THIS AGREEMENT. TO THE EXTENT\r\n PERMITTED UNDER APPLICABLE LAW, AGENCY’S AGGREGATE\r\n LIABILITY ARISING UNDER THE AGREEMENT WILL BE LIMITED TO\r\n THE TOTAL AMOUNT PAID BY CLIENT TO AGENCY UNDER THE\r\n AGREEMENT DURING THE 12 MONTHS BEFORE THE DATE OF SUCH\r\n LIABILITY.\r\n
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\r\n \r\n 9. Confidentiality.\r\n \r\n “Confidential Information” means information that one party\r\n discloses to the other party under this Agreement, and that is marked as\r\n confidential or would normally be considered confidential information under the\r\n circumstances. It does not include information that is independently developed by\r\n the recipient, is rightfully given to the recipient by a third party without\r\n confidentiality obligations, or becomes public through no fault of the recipient.\r\n The recipient will not disclose the discloser’s Confidential Information, except to\r\n employees, affiliates, agents, or professional advisors who need to know it and\r\n who have agreed in writing (or in the case of professional advisors are otherwise\r\n bound) to keep it confidential. The recipient will ensure that those people and\r\n entities use the Confidential Information only to exercise rights and fulfill\r\n obligations under this Agreement, and that they keep it confidential. The recipient\r\n may disclose Confidential Information when legally compelled by a court or other\r\n government authority. To the extent permitted by law, recipient will promptly\r\n provide the discloser with sufficient notice of all available details of the legal\r\n requirement and reasonably cooperate with the discloser’s efforts to challenge the\r\n disclosure, seek an appropriate protective order, or pursue such other legal action,\r\n as the discloser may deem appropriate.\r\n
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\r\n \r\n 10. Non-solicitation.\r\n \r\n Each party acknowledges that the other party’s employees\r\n are a valuable asset of such party. Accordingly, each party agrees that during this\r\n Agreement and for one (1) year thereafter, such party shall not, directly or\r\n indirectly, knowingly recruit or solicit, or employ, engage as a consultant, or\r\n otherwise retain, any of the other party’s employees who were involved in the\r\n performance of the Services. Each party agrees that the other party’s remedy at\r\n law for a breach of this section shall be inadequate and therefore the non-breaching\r\n party shall be entitled to injunctive relief for such breach, without proof of\r\n irreparable injury and without posting bond, in addition to any other right or\r\n remedy it may have.\r\n
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\r\n \r\n 11. Term and Termination.\r\n \r\n This Agreement shall commence on the Effective\r\n Date and shall continue for the term outlined in the purchased HUB by EDGE\r\n Campaign Package. The Agreement may be terminated by a party for cause with\r\n written notice, if a party materially breaches the Agreement and does not cure such\r\n breach within thirty (30) days following written notice thereof from the non-breaching party. Termination shall not relieve Client from any obligation to pay\r\n Agency the required fees for Services rendered and expenses incurred prior to such\r\n termination date, including the payment of the fees set forth in the applicable\r\n SOW. Upon the termination or expiration of this Agreement, Agency will, at the\r\n request of Client, exercise commercially reasonable efforts to assign all\r\n commitments and contracts for media purchases to Client or Client’s assignee. In\r\n the case of the assignment of any such commitment or contract, Agency shall be\r\n released from any liability in connection with such assignment. Regardless of any\r\n termination or expiration of this Agreement, Client shall honor and complete all\r\n commitments and contracts, including without limitation the payment of all\r\n committed media expenditures, applicable fees, expenses, materials and services\r\n obtained from third parties entered into by Agency, as authorized by Client, prior\r\n to the date of termination or expiration of this Agreement, for and on behalf of\r\n Client, regardless of whether such commitments or contracts are required to be\r\n performed before or after the date of such expiration or termination. The\r\n provisions of the Agreement, which expressly or by implication are intended to\r\n survive termination or expiration, will survive and continue to bind the parties after\r\n termination, including but not limited to, the confidentiality, limitations of\r\n liability, disclaimer, payment and indemnification provisions.\r\n
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\r\n \r\n 12. General Provisions.\r\n \r\n The relationship of the parties shall be solely that of\r\n agency and independent contractor. This Agreement does not create any\r\n partnership, joint venture, single business entity, or employment relationship\r\n between the parties. Any notices required to be given under this Agreement by\r\n either party to the other shall be in writing and may be given either by personal\r\n delivery (including, but not limited to, delivery by messenger) or courier service\r\n with proof of delivery. Notices delivered personally or via courier shall be deemed\r\n effective upon actual delivery. Notices shall be sent to the respective address of\r\n each party on the signature page below. This Agreement, including the SOW,\r\n supersedes any and all prior or contemporaneous agreements, either oral or\r\n written, between the parties with respect to the rendering of Services by Agency\r\n for Client and contains all of the representations, covenants, and agreements\r\n between the parties with respect to the rendering of those Services. Each party to\r\n this Agreement acknowledges that no representations, inducements, promises or\r\n agreements, oral or otherwise, have been made by any party, or by anyone acting\r\n on behalf of any party, which are not contained in this Agreement, and that no\r\n other agreement, statement or promise not contained in this Agreement shall be\r\n valid or binding. Any modification or amendment of this Agreement must be made\r\n in writing and signed by both parties except for any modification to the campaign\r\n parameters set forth in the SOW, which may be modified via email if mutually\r\n agreed upon by the parties. Neither party may assign, transfer or convey any of its\r\n rights, duties or interests under this Agreement, nor shall it delegate any\r\n obligations or duties it is required to keep or perform under this Agreement,\r\n without the express written consent of the other party; provided, however, no such\r\n consent shall be required for a party’s assigning this Agreement to an entity owned\r\n or controlled by or under common control with such party. Agency may\r\n subcontract the performance of Services herein, provided that, it shall remain\r\n liable for the acts or omissions of such subcontractors. If any provision of this\r\n Agreement is held by a court of competent jurisdiction to be invalid, void, or\r\n unenforceable, the remaining provisions shall continue in full force and effect\r\n without being impaired or invalidated in any way. In the event of a dispute between\r\n the parties to this Agreement, the prevailing party shall be entitled to recover\r\n attorneys' fees and costs from the non-prevailing party. Attorneys' fees shall be\r\n awarded whether the claim for relief is based on contract law, tort law, or both.\r\n This Agreement shall be governed by the laws of the State of California and each\r\n party submits to exclusive jurisdiction and venue in the courts located in Marin\r\n County, California. A party may submit an electronically executed counterpart via\r\n PDF, which will be treated as an originally signed document.\r\n
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\r\n IN WITNESS WHEREOF, each party has caused this Agreement to be executed as of the Effective Date.\r\n
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