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Program Terms

ROAMING HUNGER, LLC AGENCY MASTER SERVICES AGREEMENT

 

This Roaming Hunger, LLC Agency Master Services Agreement (“MSA”) governs each Statement of Work signed by Roaming Hunger, LLC (“Agency” or “RMNG”) and the client identified in that Statement of Work (“Client”). The SOW together with this MSA, Roaming Hunger’s Privacy Policy (“Privacy Policy”)(available at https://roaminghunger.com/pages/privacy/policy), and any incorporated Change Order(s), exhibit(s), and schedule(s) form the entire agreement that applies to Agency’s provision of Services to Client (“Agreement”).

 

PLEASE READ THIS MSA CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING EACH PARTY’S LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THIS MSA INCLUDES VARIOUS LIMITATIONS AND EXCLUSIONS AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. THIS INTRODUCTION IS FULLY INCORPORATED IN THIS AGREEMENT BY THIS REFERENCE.

 

  1. SCOPE OF AGREEMENT: Agency will provide Client with the experiential marketing services (“Services”) that are described in a Statement of Work (“SOW”) executed by the Parties. 
  2. DEFINITIONS:
    1. “Affiliate” means any entity that a Party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent) or with which it is under common control (e.g., sibling).
    2. “Agreement” means this MSA and any applicable incorporated documents, including the Privacy Policy, all SOWs, and any Change Order(s). Any terms in a quote provided by Client that conflict with this MSA or a SOW will be null and void.
    3. “Activation” means an event during which Agency provides the Services to Client.
    4. “Business Day” means any day excluding Saturday, Sunday, and any day that is a legal holiday under the laws of the State of California or is a nationally recognized federal holiday pursuant to federal law (5 U.S.C. § 6103).
    5. “Change Order” means a mutually agreed upon, written document prepared by Agency and executed by the Parties regarding any alteration or deviation from the Services or any other contractual specifications that results in a revision of the terms of a SOW or prior Change Order. A Change Order executed by the Parties will supersede the relevant terms in the applicable SOW or prior Change Order and will be incorporated into the applicable SOW.
    6. “Change Order Fee” means the automatic fee assessed for and added to all Change Orders. The Change Order Fee for a Change Order is equal to twenty percent (20%) of the additional fees resulting from that particular Change Order.
    7. “Client Input” means all input and materials, including Intellectual Property, that Client agrees to provide to Agency under a SOW, including but not limited to artwork, brand details and specifications, branded items, and uniforms. Unless otherwise specified in a SOW, Agency has no obligation to return any Client Input following provision of the Services. If the SOW specifies the return of Client Input, Client agrees to bear any associated costs.
    8. “Confidential Information” means all information disclosed by a Party that is marked as confidential. However, Confidential Information shall not include any information (i) that is public without breach of any obligation owed to the disclosing Party, (ii) was known to the receiving Party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing Party, (iii) is received by the receiving Party from a third Party without breach of any obligation owed to the disclosing Party, or (iv) was independently developed by the receiving Party.
    9. “Contingency Fee” means a budgeted allocation included in every SOW to cover unforeseen expenses or adjustments during Service execution. It provides flexibility for issues such as unanticipated logistical requirements, weather delays, equipment repairs, staffing adjustments, or minor creative modifications. The Contingency Fee is not intended for standard or pre-approved expenses related to the Services but serves as a safeguard to maintain the integrity, timeliness, and seamless execution of the Services. 
    10. “Deliverables” mean all materials, including “Creative Deliverables,” created for Client as part of the Services that are specifically described in a SOW. Creative Deliverables are Deliverables that involve creative services and include, but are not limited to, signage, billboards, and Vehicle wraps.
    11. “Fees” mean all fees relating to the provision of the Services, including but not limited to the Contingency Fee and event placement, lot, and government-imposed permit fees.
    12. “Input Deadlines” mean any deadlines in a SOW that specify when Client is required to provide Client Input.
    13. “Intellectual Property” means a Party’s patents, copyrights, trademarks, trade names, marks, service names, brand names, logos, corporate names, internet domain names, industrial designs, and all other intellectual and proprietary rights of every kind and nature throughout the world and however designated, whether arising by operation of law, contract, license, or otherwise.
    14. “Party” means Agency or Client, as applicable. Together, Agency and Client are the “Parties.”
    15. “Statement of Work” (“SOW”) means a mutually agreed upon, executed, written document describing the Services to be performed by Agency for Client and the timing, Deliverables, Fees, and expenses related thereto.
    16. “Vehicle” means any vehicle, device, or conveyance, including but not limited to automobiles, vans, food trucks, and carts, that Agency rents or otherwise obtains to be used as part of the Services.
  3. FEES AND PAYMENT:
    1. Fees and Payment. 
      1. Client agrees to pay all Fees relating to the Services in accordance with the terms of this Agreement and to provide accurate and updated billing contact information throughout the Term. 
      2. The SOW will outline the estimated Fees and the payment schedule for the Fees. Client will be required to pay a percentage of the estimated Fees upon execution of the SOW and prior to the commencement of the Services (“Payment 1”). Unless specified otherwise in the applicable SOW, Client must pay Payment 1 within seven (7) days of execution of the applicable SOW.
      3. For online payments, Agency uses the payment services of Intuit QuickBooks (https://quickbooks.intuit.com/). To the extent permitted by applicable law, all credit card payments will include a three percent (3%) surcharge. The provision of credit card information to Agency’s authorized payment processer authorizes Agency, through its authorized payment processer, to charge the credit card for all Services specified in a SOW. Agency does not process, record, or maintain Client’s credit card or bank account information, and Agency will share transaction data with its payment services providers only to the extent necessary for the purposes of processing Client’s payments, refunding such payments, and dealing with complaints and queries relating to such payments and refunds. Client acknowledges that Agency will not have access to Client’s credit card information. 
    2. Invoices. Following completion of the Services, Agency will invoice Client for any outstanding Fees and all applicable taxes. Agency will send invoices electronically unless otherwise specified in the applicable SOW. Payment of an invoice is due Net 15 from the date of that invoice.
    3. Late Fees. If any payment that is due or invoiced is not received by Agency by the due date, then, without limiting Agency’s rights or remedies, the charges for that payment may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law.
    4. Taxes. All Fees, including Change Order Fees, are exclusive of any applicable taxes and duties, including, without limitation, VAT, service tax, sales, GST, excise taxes, sales and transactions taxes, and gross receipts tax. Agency shall bill applicable taxes with the final invoice, and Client shall pay all such taxes levied or imposed by reason of Agency’s provision of the Services and the transactions hereunder, except for taxes based on Agency’s income or Agency’s employment of its employees, and unless Client can provide a valid tax exemption certificate authorized by the appropriate taxing authority.
  4. CLIENT ACKNOWLEDGEMENTS AND OBLIGATIONS: 
    1. Client understands and agrees that proposed Fees in a SOW that relate to permits and other location costs are estimates based on available information. Upon receiving the final costs from relevant government authorities or third parties, Agency will adjust the Fees if the costs exceed the estimates and will invoice Client for the difference. These updates will not require the issuance of a Change Order, and Client agrees to pay any updated Fees within fifteen (15) days of the receipt of an invoice.
    2. Client understands and agrees that if there is a material change to the scope of the Services, including, but not limited to, an increase in the Activation’s size or footprint (as outlined in the relevant SOW or Change Order), which necessitates additional permits or government approvals not listed in the SOW, Agency will submit a Change Order to Client for review and approval. 
    3. Client understands and agrees that any material changes to the terms of a SOW by Client may result in adjustments to the timelines in the relevant SOW or Change Order. In such circumstances, Agency will submit a Change Order to Client for review and approval.
    4. Client understands and agrees that, with regard to the Input Deadlines listed in a SOW, time is of the essence. If Client fails to meet the Input Deadlines, Agency may exercise any of the following remedies, or a combination thereof:
      1. incorporate the revised deadlines into a Change Order that will include Change Order Fees;
      2. place the Services on hold until the required Client Input is provided; and/or
      3. terminate this Agreement and any SOW(s) with immediate effect pursuant to Section 15(b)(i)(1)(A).
    5. Client understands and agrees that all Change Orders will include an automatic Change Order Fee equal to twenty percent (20%) of the additional fees in the Change Order and that the Change Order Fee will be charged in addition to the additional fees in the Change Order.
  5. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP:
    1. Client Obligations. Client is responsible for all Client Input that it provides to Agency under this Agreement, including all Client Intellectual Property and third-party materials. Client represents and warrants that Client Input does not infringe upon the rights of any third party or violate Agency’s Privacy Policy or any applicable law. Client represents and warrants and that it has all necessary rights and permissions necessary to grant the rights contemplated under this Agreement with respect to Client Input. 
    2. Reservation of Rights. No right, title, or interest in a Party’s Intellectual Property shall transfer to the other Party under this Agreement, except for the limited rights expressly provided for in this Agreement. Each Party retains all rights, title, and interest in its respective Intellectual Property.
    3. Grant of Limited License. Client hereby grants to Agency a nonexclusive, worldwide, royalty-free, sublicensable license to use, transmit, advertise, promote, reproduce, prepare derivative works of, publicly display, distribute, and otherwise use Client Input, including Client’s Intellectual Property, solely in connection with the provision of the Services and for Agency’s marketing and other media usage rights as set forth in this MSA and applicable SOW(s).
    4. Ownership of Deliverables. Deliverables that are listed in a SOW that are protected by copyright are “works made for hire” as that term is defined in the Copyright Act of 1976, 17 U.S.C. §101 et seq. and the copyright therein shall be owned by Client, worldwide, for all purposes. Agency will retain exclusive ownership of (i) its know-how, concepts, techniques, methodologies, ideas, templates, routines, sequences, software, firmware, designs, scripts, interfaces, programming code, applets, executables, objects, files, utilities and tools that existed prior to the performance of the Services hereunder (collectively, “Agency Elements”); and (ii) any ideas, concepts, techniques and know-how discovered, created or, developed by Agency during the performance of the Services that are of general application and that are not based on or derived from Client’s Confidential Information or Intellectual Property. To the extent the Deliverables incorporate Agency Elements, Agency gives Client a non-exclusive, non-transferable (except to Client’s Affiliates or successors), perpetual, royalty-free, worldwide right to use such Agency Elements solely in connection with those Deliverables. Any improvements, modifications, and enhancements to Agency Elements shall remain the sole property of Agency. Agency shall assign the Intellectual Property rights to all Deliverables to Client upon receipt of full payment of all applicable Fees (including Change Order Fees and all applicable taxes) in accordance with the payment terms of this MSA and the applicable SOW(s). Client will retain the responsibility for obtaining any legal protection (trademarks, patents, copyrights, etc.) for any Deliverables. At Client’s request and cost, Agency will reasonably assist Client in obtaining any such legal protection.
  6. SUBCONTRACTORS: Client expressly agrees that Agency may subcontract some or all duties related to the Services without Client’s consent. 
  7. VEHICLES; WRAPPING: Pursuant to the terms of a SOW, Agency may be responsible for obtaining Vehicles as part of the Services.
    1. Title to and ownership of the Vehicle(s) shall remain with the existing Vehicle owner(s) at all times before, during, and after the Term. 
    2. The Vehicle(s) will have current and valid health and operating permits. 
    3. If requested by Client in a SOW, Agency will wrap each Vehicle one time with a vinyl graphic as specified in the SOW. Client acknowledges that newly-applied vinyl wraps may have subtle texture changes, small wrinkles, and tiny imperfections. These occurrences are normal and are not cause for rewrapping. Agency will address significant visible issues. Upon completion of the Services, Agency will remove the vinyl wrap and return each Vehicle to its original state. 
    4. Unless otherwise specified in a SOW, Agency is not responsible for preserving or returning any Deliverables or any Client Input or other Client-provided materials that are removed from Vehicle(s), Equipment, or other structures following the provision of Services under this Agreement.
  8. EQUIPMENT: As part of the Services, Agency may elect to purchase equipment to lease to Client or, with Client’s express, written consent, to purchase equipment on behalf of Client (“Equipment”). A SOW or Change Order, as applicable, will outline all relevant details regarding such Equipment, including the Equipment’s lease or purchase terms, scope of use, and return or disposition procedures.
  9. NO WARRANTIES: Agency does not guarantee or warrant that the Services will meet Client’s requirements, be profitable, produce projected outcomes, operate in an uninterrupted fashion, or be error-free. TO THE EXTENT PERMITTED BY LAW, AGENCY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, CONTRACTUAL, OR STATUTORY, AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF ACCURACY OF INFORMATION, SERVICE, OR PROFITABILITY. Client shall remain obligated for all Fees due under any applicable SOW regardless of Client’s satisfaction with Agency’s performance. Any key performance indicators (“KPIs”), service levels, or benchmarks discussed between Client and Agency are considered targets only, and their achievement will not serve as grounds to withhold payment of Fees.
  10. CONFIDENTIALITY:
    1. A receiving Party will only use Confidential Information for the purposes of performing its obligations or as otherwise permitted under this Agreement. A receiving Party may disclose Confidential Information only: (i) if approved by the other Party in writing; (ii) if required by law or regulation; (iii) in the event of dispute between the Parties, as necessary to establish the rights of either Party; or (iv) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that prior to disclosing Confidential Information under Section 10(a)(iv), the receiving Party shall provide prompt notice of such court order or requirement to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
    2. During the term of the most recently agreed upon SOW and for one (1) year thereafter, the receiving Party shall use at least reasonable care to protect the disclosing Party’s Confidential Information, not disclose any Confidential Information of the disclosing Party for any purpose outside the scope of the applicable SOW and this MSA, and limit access to Confidential Information of the disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with the SOW. Notwithstanding the foregoing, in the case of Confidential Information that is a trade secret, the provisions under this Section 10 shall survive for as long as such Confidential Information remains a trade secret under California law.
    3. The receiving Party will deliver to the disclosing Party or destroy all the disclosing Party’s Confidential Information upon request by the disclosing Party, except that the receiving Party (i) may retain one copy of the Confidential Information in its legal files for use in connection with any dispute regarding this Agreement; and (ii) shall not be required to destroy any Confidential Information contained in any electronic back-up of receiving Party’s records made in the ordinary course of business; provided that the protections of this Agreement shall apply to such Confidential Information for as long as the information is retained under this Section 10(c).
  11. LIABILITY:
    1. Each Party (each an “Indemnifying Party”) agrees to defend, indemnify, and hold the other Party, including its Affiliates and respective officers, members, directors, employees, representatives, agents, successors, and permitted assigns (together,“Indemnified Parties”), harmless from and against any loss, cost, liability, damage, or expense (including reasonable attorneys’ fees and expenses) (“Losses”) arising out of or resulting from any third-party claim alleging (i)material breach of this Agreement by Indemnifying Party;(ii)gross negligence or willful misconduct of Indemnifying Party in connection with its performance under this Agreement;(iii)any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Indemnifying Party; or (iv) any failure by Indemnifying Party to comply with all applicable state, federal, or local laws, regulations, or codes in the performance of its obligations under this Agreement.
    2. Client shall indemnify, defend, and hold Agency, its Affiliates and respective officers, members, directors, employees, representatives, agents, successors, and permitted assigns harmless from any Losses arising out of or resulting from any claim alleging that Client Input infringes upon any third party’s Intellectual Property rights. Agency agrees to notify Client promptly of any such claims.
    3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES; FOR ANY LOST PROFITS, REVENUE, OR SAVINGS; OR FOR ANY LOSS OF USE, LOSS OF GOODWILL, LOST BUSINESS OPPORTUNITIES, OR LOST DATA ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY LEGAL OR EQUITABLE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE REASONABLY FORESEEABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT TO AGENCY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION 11(C) WILL NOT APPLY TO CLIENT’S OBLIGATIONS TO PAY ANY UNDISPUTED FEES, INVOICES, OR COSTS UNDER THIS AGREEMENT OR TO A PARTY’S LIABILITY FOR (i) FRAUD OR WILLFUL MISCONDUCT, (ii) DEATH OR PERSONAL INJURY, OR (iii) INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11(C). IF ANY LAWFUL AUTHORITY HOLDS ANY PORTION OF THIS SECTION 11(C) TO BE UNENFORCEABLE, THEN EACH PARTY’S LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
  12. ARBITRATION: The Parties will first attempt to resolve all controversies or claims arising out of or in connection to this Agreement, or the breach thereof, (“Dispute”) through good-faith negotiation. If, after thirty (30) days, a Dispute is not resolved through negotiation, the Dispute shall be finally settled under the Commercial Arbitration Rules of the American Arbitration Association (“Rules”), except that either Party may elect to proceed in small claims court in Los Angeles County if the Dispute qualifies under applicable court rules. The Federal Arbitration Act will govern this Agreement. If for any reason a claim proceeds in court rather than in arbitration, the Parties waive any right to a jury trial.
    1. Procedure. The arbitration will be conducted in English in Los Angeles, California before a single, neutral arbitrator appointed in accordance with the Rules. The Parties agree that the arbitration will be conducted only on an individual basis and not as part of a class, consolidated, or representative action. Judgment on the arbitration award may be entered in any court having jurisdiction.
    2. Award and Appeal. The arbitrator shall, in the award, allocate all the reasonable costs of the arbitration and related litigation, including the fees of the arbitrator and the reasonable attorneys’ fees of the Party that primarily prevails, against the Party that did not primarily prevail. The Parties agree that the underlying award in arbitration may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules. Appeals must be initiated within thirty (30) days of receipt of an underlying award in accordance with the Optional Appellate Arbitration Rules. Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof
    3. Equitable Relief. The Parties agree that nothing in this Section 12 prevents a Party from seeking a temporary restraining order or injunctive or other equitable relief in any court of competent jurisdiction with respect to a breach (or threatened breach) of the Confidentiality provision of this Agreement by the other Party, without the requirement of posting a bond.
  13. GOVERNING LAW: This Agreement shall be governed by and construed under the Federal Arbitration Act, without reference to conflict of law rules. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
  14. INSURANCE: 
    1. During the Term and for twelve (12) months following expiration or termination of the latest SOW between the Parties, Client agrees to maintain, at Client’s sole cost and expense, all the necessary and appropriate insurance that is reasonable in the applicable industry, but no less than the following:
      1. workers compensation insurance with statutory limits (if required by law);
      2. commercial general liability insurance providing coverage for bodily injury and property damage arising out of the Services to be performed with limits of not less than $1,000,000 per occurrence/$2,000,000 aggregate; and
      3. umbrella insurance with a limit of not less than $2,000,000.
    2. If Client is operating any automobile(s) or similar vehicle(s) or providing its own automobile(s) or similar vehicle(s) as part of the Services, Client also agrees to keep in full force and effect and maintain at Client’s sole cost and expense automobile insurance with limits of not less than $1,000,000 per occurrence/$2,000,000 aggregate during the Term and for twelve (12) months following expiration or termination of the latest SOW.
    3. All insurance required under this Section 14 shall be with insurance companies that maintain a rating of not less than A- VII in the most current publication of Best’s Insurance Reports published by A.M. Best Company. All insurance policies required of Client by this Agreement, except workers compensation insurance, shall name Agency as an additional insured. Upon request, Client agrees to provide certificates of insurance signed by an authorized representative of the respective carriers prior to commencement of the Services. By requiring such minimum insurance, Agency shall not be deemed or construed to have assessed the risk that may be applicable to Client under this Agreement. Client shall assess its own risks and if it deems appropriate and/or prudent, maintain higher limits and/or broader coverage. 
  15. TERM AND TERMINATION:
    1. Term. This Agreement is effective on the latest signature date that the first SOW processed under this MSA is executed by the Parties and will continue until the latest SOW between the Parties expires or is terminated (“Term”). Unless otherwise specified in a SOW or terminated earlier in accordance with this Agreement, the term of any SOW shall begin from the date of execution of that SOW (“SOW Effective Date”) until the date of completion of the Services outlined in the applicable SOW (“SOW Term”).
    2. Termination.
      1. Termination by Agency. 
        1. Termination for Cause. Agency may terminate this Agreement immediately for cause (A) upon Client’s material breach or (B) if Client becomes insolvent, files a petition for bankruptcy, or commences or has proceedings commenced against it related to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If Agency terminates for cause under this provision, Client shall not be entitled to any refund of any paid Fees.
        2. Termination for Convenience. Agency may terminate for any other reason, or no reason at all, upon the provision of a minimum of fifteen (15) days’ notice to Client pursuant to Section 16. If Agency terminates for convenience under this Section 15(b)(i)(2), Agency shall refund to Client all Fees already paid by Client. 
      2. Termination by Client.
        1. Termination for Cause. If Client has provided written notice of breach to Agency pursuant to Section 16 and Agency has failed to cure such breach within thirty (30) days of receipt of such notice, Client may terminate for cause (A) due to Agency’s material breach of this Agreement, or (B) if Agency becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If Client terminates for cause under this provision, Client shall be entitled to a refund of any previously paid Fees.
        2. Termination for Convenience. If Client terminates this Agreement early other than under Section 15(b)(ii)(1), Client shall notify Client’s assigned Agency account manager as set forth in the most recent SOW immediately via email and pursuant to Section 16.
          1. LIQUIDATED DAMAGES. THE PARTIES AGREE THAT QUANTIFYING LOSSES ARISING FROM CLIENT’S EARLY TERMINATION WITHOUT CAUSE IS INHERENTLY DIFFICULT AND INEXACT. ACCORDINGLY, IF CLIENT TERMINATES EARLY FOR ANY REASON OTHER THAN UNDER SECTION 15(b)(ii)(1), CLIENT WILL BE RESPONSIBLE FOR PAYING LIQUIDATED DAMAGES EQUAL TO THE GREATER OF (A) THE TOTAL COST OF ALL OF AGENCY’S OUT-OF-POCKET EXPENSES, PLUS THIRTY PERCENT (30%) OF THOSE EXPENSES, OR (B) THE FEES ALREADY PAID. THE PARTIES STIPULATE THAT THE AGREED UPON LIQUIDATED DAMAGES SUM IS NOT A PENALTY, BUT RATHER A REASONABLE MEASURE OF DAMAGES, BASED UPON THE PARTIES’ EXPERIENCE IN THE EXPERIENTIAL SERVICES INDUSTRY AND GIVEN THE NATURE OF THE LOSSES THAT MAY RESULT FROM CLIENT’S EARLY TERMINATION WITHOUT CAUSE. THIS PROVISION SHALL NOT APPLY IN THE EVENT OF CONCURRENT DELAY OR DELAY CAUSED BY A THIRD-PARTY. 
    3. Notwithstanding anything to the contrary set forth herein, expiration or termination of this Agreement or any SOW shall not relieve the Parties of any obligation that has accrued prior to the effective date of such expiration or termination and shall not preclude a Party from pursuing all rights and remedies it may have hereunder, at law, or in equity with respect to any breach of this Agreement, nor prejudice a Party’s right to obtain performance of any obligation under the Agreement. A Party’s rights and obligations under all provisions of this Agreement that by their sense and context are intended to be applicable following expiration or termination or that are necessary to fulfill the essential purpose of the Agreement, including but not limited to the provisions regarding Intellectual Property, Confidential Information, representations, indemnification, insurance, arbitration, and the rights and remedies upon termination, shall survive expiration or termination.
  16. NOTICES: All notices to be given under the Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by overnight courier or registered or certified mail to the addresses specified in the SOW executed by the Parties or to any other address specified in writing by the receiving Party. Notice to Agency shall be sent to Roaming Hunger, LLC, 8360 Melrose Ave, Second Floor, Los Angeles, CA 90069, Attention: RMNG General Manager. Notice provided by personal delivery will be effective immediately; notice provided by overnight courier will be effective one (1) Business Day after it is sent; and notice provided by registered or certified mail will be effective upon receipt, if delivery is confirmed by a return receipt.
  17. RELATIONSHIP OF THE PARTIES: It is the express intention of the Parties that Agency is an independent contractor. Nothing in this MSA or any SOW shall in any way be construed to create or constitute a joint venture, partnership, or employment relationship between Agency, Client, or any third parties. Neither Party has the authority to bind or represent the other except as expressly set forth in this Agreement.
  18. LIMITED AUTHORIZATION: Notwithstanding the Parties’ independent contractor relationship, the Parties agree that Agency may act as an agent of Client during the Term solely for the purpose of providing the Services agreed to by the Parties in a SOW. As Client’s agent for this limited purpose, Agency has the authority, authorization, and right to contact third parties and negotiate and enter into agreements on Client’s behalf solely for the purpose of providing the Services during the Term and in accordance with this Agreement, including the applicable SOW.
  19. MEDIA USAGE RIGHTS: Client agrees to allow Agency and its Affiliates to use and share photos, videos, and other media content for promotional purposes, including but not limited to Agency’s and its Affiliates’ websites and social media platforms, and for internal purposes. Agency agrees to use such content responsibly and in a manner that respects Client’s brand.
  20. AUTHORITY: Each Party warrants and represents to the other that the individual signing this Agreement on behalf of such Party has the power, authority, and legal capacity to bind the Party they represent and to bind any entities, corporations, partnerships, limited liability companies, joint venturers, or other organizations and entities on whose behalf they are signing.
  21. NON-CIRCUMVENTION: Client agrees that all third-party vendors introduced to Client by Agency in relation to the provision of the Services (and with which Client did not a formal business relationship prior to the Services) represent significant efforts and working relationships that are unique to, and part of, Agency’s partner network, work product, intellectual capital, and proprietary information. During the Term and for twelve (12) months thereafter, Client agrees that it will not directly or indirectly contact, deal with, or enter into any agreements with such third-party vendors to circumvent Agency and to prevent Agency from realizing a profit, fee, or commission without obtaining Agency’s prior, written consent. Client agrees and acknowledges that such behavior might incur potential damage to Agency, whether financial or otherwise, and Agency shall be entitled to any profit, fee, and commission that may become due owing to the circumvention and may pursue any available legal and equitable causes of action, including actions for breach of contract between the Parties. 
  22. COMPLIANCE WITH APPLICABLE LAW: Each Party agrees that it will comply with all applicable laws, orders, codes, and regulations in its performance under the Agreement.
  23. FORCE MAJEURE: Excluding payment obligations, neither Party shall be liable for any default or delay in the performance of its responsibilities under the Agreement due to fire, flood, earthquake, elements of nature or acts of God, riots, strikes, civil disorders, quarantine restrictions, epidemics, pandemics, work stoppage, labor disputes, war, or terrorism where such occurrence renders a Party unable to perform (“Force Majeure Event”). The time for performance by the non-defaulting Party will be extended as necessary, without penalty or liability to such Party, for the same period of time as the delay. If Services are delayed due to a Force Majeure Event, the Parties agree to use commercially reasonable efforts to reschedule the affected Services on mutually agreed upon dates. Any additional expenses incurred due to the rescheduling will be communicated by Agency to Client, and Client shall be responsible for those expenses. 
  24. AMENDMENTS AND WAIVERS: This Agreement may be amended or modified only by a written document signed by both Parties. All waivers must be in writing. No waiver of any provision of this Agreement or of any rights or obligations of a Party under this Agreement shall be effective unless in writing and signed by the Party or Parties waiving compliance, and only in the specific instance and for the specific purpose stated in that writing.
  25. SEVERABILITY: If any provision of this Agreement is determined to be illegal, void, or invalid, in whole or in part, the remainder of this Agreement shall remain in full force and effect as if the invalid provision had never been included.
  26. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the exclusive benefit of the Parties and does not confer any rights upon any third party. No third party shall have the right to enforce any provision of this Agreement.
  27. LANGUAGE: All communications and notices made or given pursuant to this Agreement must be in the English language. 
  28. ASSIGNMENT AND SUCCESSION: This Agreement may not be assigned or otherwise transferred by Client without Agency’s prior, written consent. Any permitted assignment, delegation, or transfer shall not relieve Client of its responsibilities for performance of its obligations under this Agreement, and Client hereby guarantees the performance of this Agreement by any permitted assigns, delegates, or transferees. Subject to the foregoing, this Agreement will bind and benefit the Parties and their respective successors and permitted assigns, delegates, and transferees. Any assignment, delegation, or transfer not in accordance with this Agreement shall be void.
  29. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any prior and contemporaneous agreements or communications between the Parties, whether written, oral, electronic, or otherwise, relating to its subject matter. Each Party agrees that in entering into the Agreement it does not rely on any promise, statement, representation, or warranty (whether in writing or not) of any person (whether Party to the Agreement or not) relating to the subject matter of the Agreement, other than as stated in the Agreement.
  30. ORDER OF PRECEDENCE: In the event of a conflict between this MSA, a SOW, and any applicable Change Order(s), the order of precedence shall be: (i) the Change Order; (ii) the SOW; and (iii) this MSA.
  31. COUNTERPARTS: The Parties may execute this Agreement and any incorporated SOWs and Change Orders electronically and in counterparts. Each counterpart is deemed to be an original, and together they comprise one and the same document.
  32. CONSTRUCTION: The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of the provisions. Words in the singular include the plural, and vice versa. Any phrase introduced by the terms “including,” “include,” “such as,” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
  33. NO PRESUMPTION AGAINST DRAFTOR: Both Parties agree that the terms of this Agreement have been negotiated and that no provision contained herein shall be interpreted against any Party because that Party drafted the provision.
     
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