Level Agency Master Services Agreement

Updated February 6, 2020

This Master Services Agreement (“MSA”) is between Level Interactive, Inc. d/b/a Level Agency, a Pennsylvania corporation of with offices located at 235 Fort Pitt, Blvd., Pittsburgh, PA 15222 (“Level”) and the client identified in the applicable SOW (“Client”) and is effective as of the date of the applicable SOW (“Effective Date”).  The parties agree as follows:

 

1. DEFINITIONS

1.1 “Agreement” means this MSA and any and all SOWs entered into by the parties hereto.

1.2 “Background Materials” means all materials, information, concepts, designs, content, utilities, processes, methodologies, algorithms, protocols, routines, methods, software (both object and source code) and tools, the Intellectual Property Rights which are owned by Level and which are: (a) in existence prior to the date on which they were first used in connection with the Services; and/or (b) materials of general applicability to Level’s business and/or clients;

1.3 “Changes” means changes to the Deliverables, Services and/or SOW as agreed between the parties in accordance with the procedures set forth in Section 4;

1.4 “Deliverable(s)” means all tangible and intangible works described in a SOW that are developed, licensed, or acquired for Client and provided to Client by Level under the Agreement;

1.5 “Intellectual Property Rights” means all copyrights, patents, database rights, trademarks, design rights, inventions, discoveries, utility models and improvements whether or not capable of protection by patent or registration, any goodwill in any trade or service name, trading style or get-up and any other proprietary right, whether registered or not now known or hereinafter created together with all extensions and renewals of such rights;

1.6 “Project” means any project agreed upon by the parties from time-to-time pursuant to which Level is to perform Services, as more fully described in a SOW;

1.7 “Services” means the services to be provided by Level under the Agreement (including the development and delivery of any Deliverables);

1.8 “SOW” means a Scope of Work document/agreement that the parties enter into that references this Master Services Agreement;

1.9 “Specification” means (where applicable) the technical and functional specification of the Deliverables set forth in the applicable SOW;

1.10 “Special Terms” means any terms set forth in an SOW that are expressly stated to vary the terms of the MSA for the Project covered by that SOW; and

1.11 “Third Party Materials” means materials for which the Intellectual Property Rights are owned or licensed by a third party, but excluding any open source software.

 

2. SERVICES

2.1 Level shall, from time to time during the term of the MSA, perform Services and supply Deliverables to Client in accordance with the terms and conditions of the MSA and all applicable SOWs. Details of each Project, including the Services and Deliverables to be supplied under such Project, shall be set forth in a SOW.2.2 Upon approval of the SOW by both parties, the terms of the SOW shall be binding upon the parties and shall be incorporated into and form part of the MSA.

2.3 Level shall only be obliged to supply Services and/or Deliverables as expressly set forth in a SOW and shall not be obliged to supply any Services and/or Deliverables for a Project until both parties have approved the applicable SOW.

 

3. CLIENT OBLIGATIONS

3.1 Client shall be responsible for specifying in the SOW, fully and clearly to Level, its requirements for the Services and Deliverables.3.2 If the performance of any Services requires the use of any information (including, without limitation, claims and representations about Client’s products/services), documentation, equipment, software, trademarks, talent or other material to be supplied to Level by Client or subject to agreements entered into by Client independent of Level (such as promotion agreements, sponsorship agreements, etc.) (collectively, “Client Materials”), then Client agrees to promptly provide Level with the Client Materials at no charge, and Level shall not assume any responsibility or liability for the acquisition of the Client Materials.

3.3 Client shall be responsible for obtaining all rights, permissions and licenses necessary for Level to use the Client Materials, including any third-party content which is part of the Client Materials.

3.4 Level’s ability to perform its obligations under the Agreement may be dependent on Client, Client’s agents, or third-party platforms/providers (e.g. media platforms like Facebook) fulfilling their obligations. In particular, Level will use commercially reasonable efforts to guard against any loss to Client caused by the failure of media, suppliers or others to perform in accordance with their commitments, but Level will not be responsible for any such loss or failure on their part.  To the extent that Client or such third party platforms, contractors or agents do not fulfill their obligations under the Agreement, then Level: (a) will be relieved of its obligations to Client to the extent that Level is prevented from performing the Services and delivering the Deliverables in accordance with the Agreement; and (b) shall not be liable for any costs, charges or losses sustained by Client arising directly from any such failure to fulfill its obligations under the Agreement.

 

4. PROJECT ADMINISTRATION PROCEDURES

4.1 The parties acknowledge that cooperation and teamwork are essential for the success of each Project. Both parties agree to use mutually agreed upon processes to report the progress of each Project and to identify, track, and resolve project issues, and questions.  Level shall entitled to charge Client for both internal project administration hours and hours spent communicating with Client regarding the applicable SOW.4.2 In order to accommodate the approval of Changes and other necessary communications, Client agrees to designate a representative (“Client Representative”) with the authority to: (a) provide all approvals, including approving Changes and the cost of Changes; and (b) resolve Project related issues.

4.3 The parties acknowledge that Changes are a likely result of the collaborative process under which the parties shall be working. Upon either party proposing a Change, Level shall provide Client with a description of the estimated cost of implementing the Change and the estimated impact of a Change on the Project (“Change Order”).  Upon approval of the Change Order by Client, the Agreement and the applicable SOW shall be automatically amended by the approved Change Order.

4.4 Level shall be entitled to charge Client at its standard hourly rates for the time spent in assessing a Change proposed by Client.

4.5 Pending approval of the Change Order by Client, Level shall continue to perform and be paid for the Services as if the applicable Change had not been requested.

4.6 The parties may agree in a SOW that Client’s approval is required before Level may proceed with the next step(s) in relation to particular Services and/or Deliverables and/or prior to incurring Expenses or Third Party Costs in connection with the Services. Level shall be entitled to assume that any person purporting to have the authority to approve its work, Expenses and/or Third Party Costs on behalf of Client does have the requisite authority.  Level shall not be responsible for any delay in the performance of the Services resulting from the unavailability of such persons to provide the necessary approval on behalf of Client.

 

5. ACCEPTANCE

5.1 Upon delivery to Client of completed Deliverables, Client shall examine such Deliverables and notify Level in writing within the time period set forth in the SOW, or such other date agreed by the parties in writing, as to whether it accepts such Deliverables or rejects them. (After Level’s delivery of each deliverable, Client will have 5 business days to inspect the deliverable to verify that it conforms in all respects to the applicable specifications specified in the applicable SOW. Upon completion of such 5 business day period, if Client has not delivered a Rejection Notice (as defined below) such deliverable shall be deemed automatically accepted by the Client.  Client may only reject Deliverables if and to the extent that they fail to conform in all material respects to the Specifications set forth in the relevant SOW.

5.2 If Client reasonably determines in good faith that a Deliverable does not conform to the applicable specifications or does not otherwise pass the applicable acceptance criteria set forth in the applicable SOW, if any, Client will promptly notify Level of its determination in a written notice (email is sufficient) setting forth a description of the nonconformities exhibited by the deliverable (“Rejection Notice”).

5.3 Upon rejection of any Deliverables in accordance with Sections 5.1 and 5.2, Client shall require Level to correct and resubmit such Deliverables within thirty (30) days (or such other period agreed between the parties in writing) for re-examination in accordance with the provisions of this Section 5.

5.4 Any Deliverables resubmitted by Level pursuant to Section 5.2 above shall be subject to the procedure set forth in Section 5.1. If, in Client’s reasonable opinion, the resubmitted Deliverables (or any part thereof) still fail to conform in all material respects with respect to the Specifications set forth in the relevant SOW, Level may elect to correct the defects identified at no extra cost to Client.  If Level is unable or unwilling to correct any identified defects, Client shall, as its sole remedy, be entitled to accept such part of the resubmitted Deliverables (or any part thereof) as Client may decide. Where Client only accepts part of the Deliverables, Level shall reduce the Fees (as defined below) proportionately.

 

6. FEES AND EXPENSES

6.1 Client shall pay Level the Fees (the “Fees”) calculated and payable for each Project in accordance with the terms of the applicable SOW. In addition to the Fees, Level will invoice Client for all reasonable expenses (“Expenses”) incurred by Level in connection with the performance of the Services.  Such expenses include, but are not limited to those incurred for fonts, travel, stock imagery, stock video, hosting, third-party technologies, etc.  All such expenses incurred will be invoiced by Level Agency to Client and Client shall pay the any such invoice no later than thirty (30) days after the date of the applicable invoice.

6.2 The Fees, Expenses and Third Party Costs (as defined in Section 7) will be invoiced in accordance with the payment terms set forth in the applicable SOW and shall be payable in full within thirty (30) days of the date of the relevant invoice without deduction, withholding or set-off except any deduction or withholding which is required by law. Interest will accrue on any past due amounts at a rate equal to one and one-half percent (1.5%) per month, or the maximum amount permitted by law, whichever is less.  Client agrees to pay all reasonable attorneys’ fees and/or collection costs that Level incurs as a result of collecting past due amounts.

6.3 If Client is overdue with any payment hereunder, then without prejudice to Level’s other rights or remedies, Level shall have the right to immediately suspend performance of the Services until Level has received payment of the overdue amount, together with any accrued interest.

 

7. THIRD PARTY SERVICES & DISBURSEMENTS

7.1 In addition to the Fees and Expenses, Level will invoice Client for all goods and services purchased by Level from third parties for the purposes of providing the Services and Deliverables to Client (“Third Party Costs”).

7.2 In purchasing any of the goods and services referred to in Section 7.1, Level will obtain Client’s authorization before making any substantial commitments or substantial expenditures on Client’s behalf, and Level is authorized to act on Client’s behalf as an agent for a disclosed principal for the purpose of entering into agreements to purchase such goods and services, including, without limitation, securing advertising space or time, software, services, materials or information in connection with performing Level’s Services pursuant to the Agreement.

7.3 Client understands that Level shall not be required to finance Client’s advertising and marketing efforts. As such, Level shall not be required to advance money or go out of pocket on Client’s behalf in connection with its Services performed for Client.  If Level incurs Third Party Costs on Client’s behalf, Client agrees that, notwithstanding anything in the Agreement to the contrary, any payment that Level must make on Client’s behalf to such third party must be collected from Client no later than a reasonable time prior to the date on which Level must commit to making such payment on Client’s behalf – even if such required payment date is prior to the date that is thirty (30) days from Client’s receipt of Level’s invoice.  In the event that Level does not receive payments by the date(s) set forth above, Level shall have the right to not purchase or contract on Client’s behalf or to cancel any contracts previously entered into on Client’s behalf.  In the event that Level cancels any such contracts at Client’s request or due to Client’s non-payment of amounts previously approved for expenditure by Client, in writing, Client shall be responsible for any charges and fees incurred prior to, or as a result of, such cancellation.

7.4 Unless otherwise stated in the Agreement, Level’s contracts with third party suppliers in connection with the Services and Deliverables shall be made in accordance with such suppliers’ standard or individual conditions and contracts as passed through to Client. The rights and liabilities as between Client and Level in connection with such third party supplied Services and Deliverables shall correspond to those between Level and such suppliers under such conditions, including any rights of amendment, omission and cancellation.

 

8. INTELLECTUAL PROPERTY

In the absence of any Special Terms to the contrary, the following provisions shall apply:

8.1 As between Client and Level, the Deliverables (other than Background Materials) that Level produces on Client’s behalf as part of the Services, and any and all Intellectual Property Rights associated therewith, will become Client’s property when Client has paid Level’s invoices. As between Client and Level, and upon payment of Level’s invoices, the Deliverables shall be considered “works for hire” as defined under the Copyright Act of 1976, as amended.  If, for any reason, the Deliverables are deemed not to be works for hire, Level hereby assigns to Client all of Level’s right, title and interest in and to the Deliverables.  At Client’s cost and expense, Level shall cooperate with Client and execute all reasonable documents and take other necessary actions as reasonably directed by Client to effect the foregoing grant of rights.  Level shall waive all moral rights in and to the Deliverables.

8.2 Level shall retain ownership of all Background Materials (including, without limitation, all Intellectual Property Rights therein). To the extent that such Background Materials form a part of any Deliverable(s), upon payment of all Fees due hereunder for such Deliverable(s), Level hereby grants to Client a non-exclusive, royalty-free, worldwide license to use such Background Materials in connection with the use, operation and maintenance of the Deliverable(s) incorporating such Background Materials. Client shall not use Background Materials independently of the Deliverable(s) and shall not distribute, resell, sell or license any Background Materials independently of the Deliverable(s), or any derivative work or component thereof, to any third party for any reason.

8.3 If and to the extent that any of the Deliverables comprise or include any Third Party Materials, the applicable third party supplier will retain ownership of all Intellectual Property Rights in the Third Party Materials.

8.4 Notwithstanding any of the above: (a) where the SOW specifies that certain Deliverables may only be used for a specific campaign or campaigns and/or for a specific usage period, territory and/or media, Client shall only be entitled to use the Deliverables in accordance with the usage terms set forth in the applicable SOW. Any extended or additional usage shall require Level’s prior agreement and may be subject to additional payment and/or conditional upon third parties granting extended or additional rights to use relevant Third Party Materials; (b) Level shall be able during and after the term of the Agreement to use any Deliverables for the purpose of promoting Level’s own business; (c) Level shall retain all Background Materials and all know-how obtained in connection with the Services and nothing shall prevent Level from using any know-how, ideas or concepts acquired before or during the performance of the Services for any purpose.

8.5 Client grants to Level a non-exclusive, royalty-free, worldwide license for the duration of each Project to use, reproduce, create derivative works from, translate, execute, display, upload, store, modify and distribute Client Materials solely to provide the Services and create the Deliverables contemplated by the relevant SOW. Any materials provided by Client to Company are to be used solely to perform the Services. Client hereby grants to Company a non-exclusive, worldwide, royalty-free license in and to any deliverables under the applicable SOW and Client Materials, under all of Client’s intellectual property rights therein, solely for the purpose of performing the Services contemplated by any SOW in accordance with the terms of this Agreement.  Client also hereby grants to Level a non-exclusive, worldwide, royalty-free license to use any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Client (the “Client Brand”) solely for the purpose of performing the Services contemplated by any SOW in accordance with the terms of this Agreement.

8.6 Client acknowledges that Level shall not conduct trademark or patent searches as part of the Services for a Project unless Client separately engages Level to perform such services and payment for such services is specifically indicated in a SOW. Therefore, notwithstanding anything to the contrary, Level shall not be responsible for searching or clearing any trademarks, service marks, trade names, logos and slogans used in connection with the Services (the “Marks”) and, except to the extent of Level’s actual knowledge, shall not be responsible for any claims of infringement in connection with the Marks.  Level shall provide Client with all reasonable assistance, at Client’s expense, in connection with Client’s decision to search, clear or seek registrations for any Marks owned by Client as a result of the Services.

8.7 If any project, service or deliverable requires Client to obtain, for use in connection with the projects, services or deliverable, any material from a third party from whom Level or Client has not acquired the necessary right or license for the use or incorporation, then Client will, at its sole expense, acquire the necessary right or license to the third party material.

8.8 Notwithstanding anything to the contrary, Client hereby grants to Level a non-revocable, non-exclusive, worldwide, royalty-free license to use the Client Brand and any deliverable solely for the purpose of use in connection with Level’s physical or electronic portfolio and/or website that Level shows to other potential clients in the ordinary course of Level’s business.

8.9 Level shall own and retain all rights to any and all programming source code, software, technology, concepts, ideas, designs and other work, materials and information the creation or development of which predate this Agreement, including all modifications thereto made during the term hereof.

 

9. CONFIDENTIALITY

9.1 Each of the parties acknowledges that, whether by virtue of and in the course of the Agreement or otherwise, it shall receive or otherwise become aware of information relating to the other party, its clients, customers, businesses, business plans or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).

9.2 Confidential Information shall exclude information which: (a) at the time of receipt by the recipient is in the public domain; (b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents; (c) is lawfully received by the recipient from a third party on an unrestricted basis; and/or (d) is already known to the recipient before receipt hereunder.

9.3 Each of the parties undertakes to maintain the confidentiality of the other party’s Confidential Information at all times and to keep the other party’s Confidential Information secure and protected against theft, damage, loss or unauthorized access. Neither party shall at any time, whether during the term of the Agreement or at any time thereafter, without the prior written consent of the other party, use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorize or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations hereunder.

9.4 Neither party shall be in breach of this Section 9 if it discloses the other party’s Confidential Information in circumstances where such disclosure is required by law, regulation or order of a competent authority, provided that the other party is given (to the extent legally permitted) reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

 

10. WARRANTIES

10.1 Level warrants that: (i) it has the right to enter into the Agreement, and to grant the rights granted hereunder; (b) it will perform the Services with reasonable skill and care in a competent and professional manner; and (c) on the date of delivery, the Deliverables in finished and final form (“Final Deliverables”) will comply in all material respects with the applicable Specification.

10.2 Client warrants that: (a) it has the right to enter into the Agreement and to grant the rights hereunder and it has no conflicts that would prevent it from performing its obligations hereunder; (b) the use by Level of Client Materials in accordance with the Agreement shall not infringe upon the Intellectual Property Rights or any other right of a third party; and (c) the Client Materials are accurate and complete and comply with all applicable laws, regulations and codes of practice.

 

11. INDEMNIFICATION

11.1 Subject to Section 11.3, Level agrees to defend, indemnify and hold Client harmless from and against any claims, demands, losses, damages, liabilities, expenses (including legal costs) (collectively, “Losses”) made or brought or incurred by Client arising from any third-party claim pertaining to libel, slander, defamation, copyright infringement, invasion of privacy, piracy, and/or plagiarism under U.S. law arising from Client’s use in the United States of any Final Deliverable, except to the extent such Loss: (a) is covered by the indemnification obligations of Client to Level in Section 11.2; (b) arises from or relates to any modification to any Deliverable not performed by Level; or (c) arises from or relates to Client’s use of any Deliverable other than in accordance with the Agreement.

11.2 Subject to Section 11.3, Client agrees to defend, indemnify and hold Level harmless from and against any Losses made or brought against or incurred by Level in connection with or related to: (a) any claim that the Client Material infringes upon any Intellectual Property Right or any other right of any person or third party or any claim that such materials are defamatory or otherwise not in compliance with applicable law; (b) Client’s products or services; (c) Client’s gross negligence or willful misconduct; or (d) a breach (or alleged breach) by Client of any of its representations, warranties or other provisions in the Agreement.

11.3 Where a claim is made by a third party against a party, which may give rise to a claim by that party against the other party under either of the indemnities in this Section 11, the party providing indemnification will only do so to the extent that: (a) the indemnified party provides prompt written notice of any claims or actions for which it claims indemnification; (b) the indemnified party provides the party providing indemnification with reasonable assistance and cooperation in the defense of such claim or action; and (c) the party providing indemnification will have sole control over the defense and settlement of any such claim or action in accordance with the terms of this Section 11.

 

12. LIABILITY/DISCLAIMER OF WARRANTIES

12.1 Subject to Section 12.3, neither party shall be liable under or in connection with the Agreement for any loss of actual or anticipated income or profits, loss of contracts, loss of any benefit, loss of data or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including ordinary negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known. FURTHER, OTHER THAN AS SET FORTH IN SECTION 10 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ITS SERVICES, PRODUCTS AND ANY MATERIAL PROVIDED PURSUANT TO THIS MSA OR ANY SOW.

12.2 Subject to Section 12.3, Level’s total aggregate liability under or in connection with any SOW, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Fees paid by Client in respect of that SOW, but excluding any sums paid by Client in respect of Third Party Costs or Expenses. Subject to Section 12.3, Client’s total aggregate liability under or in connection with any SOW, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the total Fees, Expenses, and Third Party Costs payable by Client in respect of that SOW.

12.3 Nothing in the Agreement shall exclude or in any way limit either party’s liability for indemnification obligations or any other liability to the extent that the same may not be excluded or limited as a matter of law.

12.4 Any condition, warranty representation or other term concerning the performance of the Services and the supply of the Deliverables which might otherwise be implied into or incorporated into the Agreement whether by statute, common law or otherwise, is hereby excluded to the fullest extent permissible by law. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Level except as specifically stated in this MSA or the applicable SOW.

12.5 Level shall not be responsible for or liable for any losses, damages, liabilities, claims, costs or expenses arising in connection with: (a) any modifications, adaptations or amendments to any Deliverables made by Client or by a third party on Client’s behalf; (b) any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arising due to the acts or omissions of Client, its employees, officers, agents or sub-contractors; (c) the incorporation in the Deliverables of, or Level’s reliance upon, any Client Materials; or (d) any use of the Deliverables other than in the manner contemplated by the Agreement.

12.6 Further, certain digital projects allow consumers to upload, download and otherwise interact with the digital materials that Level produces. Level is not responsible for any consumer-generated content (blogs, digital materials, comments, etc.) or for any use by third parties of materials that are contained in any digital materials. In addition, many websites and other digital materials link to one another, and Level is not responsible for materials and websites to which any Level-produced digital materials link with Client’s authorization (including any references to those third party materials and websites (e.g., descriptions, titles, trademarks, etc.) included in Level-produced digital materials to delineate or describe the existence of the link) nor for third party materials or websites that link to any Level-produced digital materials.  Finally, Client and Level may decide that the digital materials will pull in feeds and other third party materials on a more real-time basis (news feeds, live activity feeds, Facebook integration, YouTube integration, Twitter feeds, etc.) or may buy media/place advertising on Facebook or other social media sites which then places Client’s materials in proximity to, or uses Client’s materials in conjunction with, consumer names, pictures and/or other consumer content, and Client understands that Level cannot be responsible for these feeds, media placements (i.e., claims that arise out of the nature of the space, program or media buy purchased, rather than out of the particular content (if any) produced by Level for insertion in these media) or other content.

12.7 Client shall be responsible for verifying and confirming the accuracy of any and all statements made in the Deliverables about Client, its business, products, services, industry and/or competitors, and Client undertakes to notify Level forthwith if the Client considers that any statement made in any document submitted by Level to the Client for approval is incorrect or misleading in any way.

 

13. TERM & TERMINATION

13.1 The term of the MSA shall commence as of the Effective Date and shall continue until the expiration of the term of the applicable SOW.

13.2 Each Project shall commence on the date set forth in the applicable SOW and shall, subject to earlier termination in accordance with the terms of the MSA, continue in operation for the term specified in the applicable SOW.

13.3 Either party may terminate the Agreement immediately upon written notice to the other in the event: (a) of any material breach of the Agreement by the other party which breach is not remedied (if remediable) within thirty (30) days after the service by the party not in default of a written notice on the other party, specifying the nature of the breach and requiring that the same be remedied; or (b) that the other party ceases carrying on business in the normal course, or becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors.

 

14. CONSEQUENCES OF TERMINATION

14.1 Termination of a Project in accordance with its terms by either party shall not serve to terminate the MSA or any other Projects thereunder, each of which shall continue in full force and effect.

14.2 Upon termination of the MSA under Section 13.3, all outstanding Projects shall also be terminated.

14.3 Notwithstanding any other provision of the Agreement, upon termination of the MSA or a Project for any reason: (a) Client shall immediately pay Level all Fees and Expenses under the applicable SOW, whether then due or not, together with all Third Party Costs incurred by Level affected by such termination; and (b) provisions of the Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.

 

15. GENERAL

15.1 If, due to strikes, industrial action short of a strike, lockouts, accidents, fire, blockade, flood, changes in the law, terrorist attacks, natural catastrophes, systems or telecommunications/internet failure, power failure or failure of subcontractors nominated by Client or other obstacles beyond a party’s reasonable control (“Force Majeure Event”), that party fails to perform any of its obligations under the Agreement, that party shall not be held responsible for any loss or damage which may be incurred as a result of such Force Majeure Event. Should the Force Majeure Event continue for longer than one (1) month or such other period as the parties may have expressly agreed in the SOW affected by the Force Majeure Event, the party adversely affected shall have the option of terminating the Agreement immediately without further liability other than such liabilities as have already accrued up to the effective date of termination. In no event shall a Force Majeure Event have the effect of discharging or postponing Client’s payment obligations under the Agreement.

15.2 All notices required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been given: (a) on the date actually delivered, if delivered, by hand or by e-mail, with confirmed receipt; or (b) three (3) days after posting, postage prepaid, return receipt requested, in each case to the address, and marked for the attention of the individual(s), specified in the relevant SOW.

15.3 The relationship of the parties to the Agreement is that of independent contractors and, other than as set forth herein, no other formal legal relationship is intended. Level may, without the consent of Client, subcontract portions of the Services to be provided under the Agreement to third parties selected by Level.

15.4 Each section of the Agreement is intended to stand alone. If any section is waived, or held invalid or unenforceable, it is the intent of the parties that the remainder of the Agreement remain valid and enforceable and shall be enforced to the fullest extent as if such clause had not been included.

15.5 Any waiver, amendment or modification of any of the provisions of the Agreement or any right, power or remedy hereunder shall not be effective unless made in writing. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.

15.6 The Agreement and the rights of the parties hereunder and thereunder will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws rules or choice of law principles which would require the application of the law of any other jurisdiction. Exclusive jurisdiction and venue for any claims made by either party against the other will be the state or federal courts of the Commonwealth of Pennsylvania located in Allegheny County and the parties irrevocably consent to the jurisdiction of such courts.

15.7 This MSA, and all SOWs agreed to by the parties, contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. Each of the parties acknowledges and agrees that: (a) in entering into the Agreement, it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set forth in the Agreement; and (b) to the extent that there is a conflict between the terms and conditions of any SOW or any other document and the terms and conditions in this MSA, the terms and conditions of such SOW shall govern unless otherwise specifically indicated to the contrary in such SOW by the inclusion of Special Terms.

15.8 Unless the context otherwise requires, references in the Agreement to: (a) the words “include” and “including” shall be construed without limitation; and (b) any law, rule or regulation includes any subordinate legislation/rule/enactment made from time to time thereunder and is to be construed as references to any such law, rule or regulation as modified or amended from time to time.

15.9This MSA and any associated SOW may be executed in one or more counterparts, each of which when executed will be deemed to be an original, but all of which taken together will constitute one and the same instrument.

15.10The section headings and captions of the Agreement are included merely for convenience of reference.  They are not to be considered part of, or to be used in interpreting, the Agreement and in no way limit or affect any of the contents of the Agreement or its provisions.