This Master Services Agreement (the “Agreement”) is effective on the latest signature date of the signed Proposal and Service Agreement (which incorporates this Agreement), which will constitute the formal commencement of the Agreement, between CPS Graphics Inc. d/b/a Tambourine (“Tambourine”), a Florida Corporation, having its principal offices at 100 W. Cypress Creek Rd. 550, Fort Lauderdale, FL 33309, and “Client”. Tambourine and Client shall each be referred to as a “Party” and together the “Parties”.
Tambourine and Client agree as follows:
1. DEFINITIONS.
“Client” means the person, organization or entity which is identified in and signs the Proposal and Services Agreement.
“Client Content” means any and all information (such as text, images, photos, videos, trademarks, audio and documents) and Client Data in any format that Client uploads, downloads, stores, publishes or provides to the Client’s Tambourine account for the Services.
“Client Data” means all electronic information provided or made available by or on behalf of Client to Tambourine for use in connection with Tambourine’s provision of the Services to Client.
“Confidential Information” means non-public information that the disclosing party designates as being confidential or which under the circumstances surrounding disclosure ought to be treated as confidential and information received from others that the disclosing party is obligated to treat as confidential and includes, without limitation, information relating to the disclosing party’s software or hardware products which may include source code, data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods, as well as, information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, client lists and financial results.
“DPA” shall mean that certain Data Processing Agreement between Tambourine and Client and attached hereto as Exhibit 1.
“Services” is defined in Section 2.1 of this Agreement.
“Service(s) Agreement or SOW” is defined in Section 2.1 of this Agreement.
“Personal Data” has the meaning as set forth in the DPA.
“Tambourine Technology” is defined in Section 2.2 of this Agreement.
“Term” has the meaning given in Section 3.1.
“U.S. Data Protection Laws” has the meaning set forth in the DPA.
2. PURPOSE AND USE OF THE SERVICES.
2.1 Purpose and Scope. Client desires to have Tambourine provide certain select services as well as support assistance as necessary in English-only unless otherwise indicated (“Services”), as more specifically set forth in that certain Proposal and Service Agreement (“SOW or Service Agreement”) signed by Client.
2.2 Proprietary Rights.
(a) Tambourine owns all right, title and interest in the technology, information, computer software, source code, know how, methodologies, processes, documentation, software development tools, artificial intelligence, machine learning, services, inventions, discoveries or designs, and platforms (including but not limited to the VPlanner, VProposal, VShowcase and VEngage platforms), including any modifications, copies, displays, performances, enhancements, new features, and derivative works that are owned and/or licensed by Tambourine (collectively “Tambourine Technology”). For avoidance of doubt, Tambourine is the exclusive owner of the website development platform, including but not limited to all website source code, website design, underlying architecture, and all related technical documentation and nothing in this Agreement constitutes a “Work For Hire” arrangement. Subject to the terms and conditions of this Agreement, Tambourine grants to Client a non-exclusive, non-transferable worldwide right to access and use the licensed modules as set forth the applicable SOW of the Tambourine Technology during the Term.
(b) The Tambourine Technology may be accessed and used solely specified in the applicable SOWs. Sharing of Client user accounts (user identification and password) is prohibited. Client user accounts may only be reassigned to a new individual replacing one who will no longer use the Services. Client users shall be individual human beings, and shall not be, without limitation, any form of bot, computer, AI, or machine learning.
(c) Client owns all right, title, and interest in and to all Client Content uploaded, stored, processed, or transmitted through the Tambourine Technology under the Client user accounts.
(d) Client grants to Tambourine during the Term of this Agreement a royalty-free, non-exclusive, worldwide right and license to copy, cache, store, reproduce, perform, display, use, distribute, transmit and generally make available the Client Content in electronic form via the Internet, through wireless communications services and social media through the platforms in order to provide the Tambourine Technology to Client in accordance with this Agreement.
(e) Client will not, directly or indirectly: (i) misappropriate or infringe any intellectual property rights of the Tambourine Technology, (ii) reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Tambourine Technology; (iii) modify, translate, or create derivative works based on the Tambourine Technology (iv) use the Tambourine Technology for purposes of a third party or otherwise for the benefit of a third party; or (v) use or view the Tambourine Technology for the purposes of developing, directly or indirectly, a product or service competitive to the Tambourine Technology. Client understands and agrees that in the event of a breach of this Section by Client, Tambourine may immediately suspend its performance and exercise all applicable remedies in equity and at law.
3. SUBSCRIPTION TERM AND TERMINATION.
3.1 Term. The Term of this Agreement shall be a one-year or six-month period, as indicated in the Service Agreement, from the date of execution of the Services Agreement. This Agreement shall renew on an annual or semi-annual basis, as applicable, until terminated as set forth below. This Term may differ from the Services subscription period.
3.2 Subscription Terms.
Client’s subscription(s) to the Tambourine Technology as set forth in the Service Agreement includes enrollment into an ongoing/recurring payment plan for a subscription term and one or more associated billing periods, which shall be for monthly intervals and memorialized in the Service Agreement. A “billing period” is the interval of time between each recurring billing date (i.e. the date you are charged). Client’s “subscription term” is the length of the subscription. Client’s subscription(s) will automatically renew at the end of the disclosed subscription term, unless cancelled in accordance with the instructions for cancellation herein.
Payment will be charged to Client’s provided payment method at confirmation of purchase, ACH or wire and, unless otherwise disclosed, at the start of every new billing period during Client’s current or renewed subscription term. When Client provides a payment card method, Tambourine may attempt to verify the information Client entered by processing an authorization hold. Tambourine does not charge Client in connection with this authorization hold, but Client’s available balance or credit limit may be reduced. If Client amends its Service Agreement, Tambourine may prorate the charges accordingly during the applicable billing period.
Client acknowledges that the timing of when it is billed may vary, including if its subscription began on a day not contained in a given month (e.g. if you have a monthly subscription and became a paying subscriber on January 31, your payment method would be billed next on February 28), Tambourine reserves the right to change its pricing upon 30 days prior written notice. In the event of a price change, Tambourine will notify Client in advance of the change by sending an email to the email address Client registered for its account. If Client does not wish to accept a price change, it may cancel the subscription in accordance with the instructions included in that email and this Agreement. If Client does not timely cancel its subscription, its subscription will be renewed at the price in effect at the time of the renewal, without any additional action by Client, and Client authorize us to charge its payment method for these amounts. Client is responsible for all third-party Internet access charges and taxes in connection with its use of the Tambourine Technology.
Tambourine will keep Client’s detailed payment information, such as credit card number and expiration date, ACH information and wire instructions on file. Client is responsible for keeping its payment details up to date by changing the details in your account settings. Where Client’s payment card details change or are due to expire, Tambourine may obtain or receive from your payment provider updated payment details including your card number, expiration date and CVV (or equivalent). This enables Tambourine to continue to provide Client access to the Tambourine Technology. Client authorizes Tambourine to continue to charge its payment card using the updated information. In the event of a failed attempt to charge to your primary payment method (e.g. if your payment method has expired), Tambourine reserves the right to retry billing Client’s payment method or, where Client has consented, to use any other stored payment method associated with Client’s account. If a payment is not successfully authorized due to expiration, insufficient funds, or otherwise, Tambourine may suspend or terminate its subscription. Client will remain responsible for any amounts Client fails to pay in connection with its subscription, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and mediation or court costs. Client also agrees that Tambourine may charge its payment method on file if it decides to restart its subscription to Tambourine Technology.
3.3 Subscription Cancellation Rights. Client may cancel at any time with 30 days’ written notice prior to the end of the subscription term to Client’s account representative or customer service. In the event that Client cancels prior to the new term, Client will not be charged for the new subscription term. Tambourine will notify Client prior to the new subscription term of any changes in pricing and of the new subscription term.
3.4 Termination.
(a) Either Party may terminate this Agreement for cause upon thirty (30) days’ prior written notice to the other Party in the event that the other Party has materially breached any of its obligations, representations, or warranties under this Agreement and such breach remains uncured at the expiration of such thirty (30)-day notice period.
(b) Either Party may terminate this Agreement upon the other Party’s insolvency, filing of a voluntary petition in bankruptcy, the filing of an involuntary petition in bankruptcy against such party that is not dismissed within sixty (60) days, or the appointment of a receiver or trustee for substantially all of such party’s assets.
(c) Tambourine may terminate this Agreement immediately upon written notice to Client: (i) if Client breaches the terms of Section 2.2; (ii) in the event of a Force Majeure circumstance as set forth in Section 14.7; or (iii) without cause, upon 60 days’ prior written notice.
(d) Without any liability, Tambourine may immediately restrict access, suspend, or terminate this Agreement or access to the Tambourine Technology if Client fails to make any required payment, or due to a concern of fraud or a security incident.
(e) Upon termination by either Party, all outstanding invoices and fees shall become immediately due and payable, without prejudice to any other remedies available to Tambourine. All services, systems, digital campaigns, and processes delivered under this Agreement are the sole property of Tambourine and shall be retained by Tambourine upon termination. Tambourine will retain any prepaid subscription fees except in the event of conclusive evidence of Tambourine’s material breach.
The following provisions shall survive the expiration or earlier termination of this Agreement: (i) Section 2.2 (Proprietary Rights); (ii) Section 3 (Subscription Term and Termination); (iii) Section 6.2 (Client Representations and Warranties); (iv) Section 7 (Indemnification); (v) Section 8 (Limited Warranty and Disclaimer); (vi) Section 9 (Data Protection); (vii) Section 10 (Confidentiality); (viii) Section 11 (Marketing Rights); (ix) Section 12 (Disputes); and (x) Section 14 (Miscellaneous).
4. CUSTOMER SERVICE.
4.1 Support Service Hours. Tambourine’s online support desk is available 24/7/365. Live support is available Monday-Friday during the following hours: (a) for Clients located in the continental United States from 9:00 a.m. to 6:00 p.m. in the Client’s local time zone; and (b) for all other Clients from 9:00 a.m. to 9:00 p.m., Eastern Time. Platform Uptime is 99.8%.
4.2 Submitting Support Requests. You can submit a ticket by sending an email to support@tambourine.com.
4.3 Support Limitations. Tambourine’s support services are limited to technical assistance related to the functionality of the Tambourine Technology and Services as described in this Agreement. Support does not include: (a) on-site support or services; (b) support for third-party software, integrations, or products not provided by Tambourine; (c) custom development, configuration, or programming services; (d) training or end-user education; (e) support for issues arising from Client’s misuse, unauthorized modifications, or failure to follow Tambourine’s documentation or instructions; or (f) support outside the hours specified this Section. Tambourine does not guarantee specific response times and shall provide support on a commercially reasonable efforts basis. All support is provided in English and in Spanish, as requested by Client.
5. PAYMENTS, EXPENSES AND FEES.
5.1 Client shall pay Tambourine the agreed upon terms in any executed Services Agreement. If not set forth in a Services Agreement, payment shall be due next 30 days from date of receipt of the Tambourine invoice.
5.2 Additional fees may apply for ad hoc services requested by Client, including but not limited to professional photography of the property, additional marketing materials, or other supplemental services such as additional support services, animation or media not included in the standard subscription or the SOW. Tambourine will charge Client for any such additional fees as set forth in the Services Agreement.
5.3 Client shall pay Tambourine out of pocket expenses incurred for the Services as set forth in the Services Agreement, which shall be invoiced on a monthly basis unless a different period is set forth in the Services Agreement. If Client requests an onsite meeting with Tambourine staff or engages Tambourine for services that require Tambourine staff to visit the property or business for one or more nights, the Client is responsible for all reasonable travel-related expenses for Tambourine staff for the duration of the visit.
5.4 Tambourine’s services are subject to monthly subscription fees (“Monthly Fees”). Monthly Fees may be paid by Client by automated ACH debit, check or wire transfer, or credit card, as approved by Tambourine. Tambourine prefers payment via ACH and no additional fees shall apply to ACH payments. Payments made by credit card are subject to a processing surcharge equal to 3% of the payment amount, or such lesser amount as required by applicable law and are not charged where prohibited by applicable law. Clients paying by check or wire transfer pursuant to invoice terms shall remit payment in accordance with the payment instructions provided by Tambourine. Client is responsible for any bank or wire transfer fees incurred.
To the fullest extent permitted by law, Client waives all claims relating to charges unless raised within sixty (60) days after a charge. All payments under this Agreement must be made in United States Dollars. Nothing in this Agreement obligates Tambourine to extend credit to Client.
6. CLIENT RESPONSIBILITIES.
6.1 Client Content and License Grant.
(a) Client will provide Tambourine team with its high-resolution Client Content for use in the Services. Upon Tambourine’s request, Client shall provide evidence of licensing of any Client Content which Client has provided to Tambourine to perform the Services. Notwithstanding the foregoing, Tambourine shall have no liability or responsibility for reviewing, verifying, or ensuring the accuracy, legality, or non-infringement of any Client Content.
6.2 Client Representation and Warranties. Client represents and warrants that:
(a) Client has all legal authorizations, rights, and permissions necessary to publish, disclose, transfer and license any and all Client Data and Client Content provided to Tambourine;
(b) any and all Client Content provided by Client to Tambourine are owned by Client, or properly licensed or purchased royalty free, including all intellectual property rights of any kind, and further including model, and talent usage rights;
(c) Client Content does not and will not infringe, misappropriate, or violate any third party’s intellectual property rights, privacy rights, publicity rights, or any other proprietary or personal rights;
(d) Client Content does not contain any defamatory, libelous, or unlawful material;
(e) Client has obtained all necessary consents, releases, and authorizations from any individuals depicted or referenced in Client Content;
(f) The Client Data and Content comply with all applicable laws, rules, and regulations and Client shall comply with all applicable laws, rules and regulations with respect to its obligations under this Agreement;
(g) Client is solely responsible for any and all connections and APIs to the Tambourine Technology;
(h) Client shall not provide any Client Content which contains software or technology instructions to disable, disrupt, erase, alter, harm, damage, interfere with, or otherwise impair the Tambourine Technology;
(i) Client shall provide Tambourine with information, assistance and cooperation reasonably requested by Tambourine in order to enable Tambourine to meet its obligations under the Agreement;
(j) Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Tambourine Technology;
(k) Client shall be solely responsible for any claims, damages, or liabilities arising from Tambourine’s use of the Client Content in accordance with this Agreement;
(l) Client is solely responsible for selecting, procuring, implementing, maintaining, and operating its own customer relationship management system (“CRM”) and any integrations between Client’s CRM and the Tambourine Technology. Tambourine shall have no responsibility or liability for the performance, security, data integrity, or availability of Client’s CRM, or for any issues arising from the integration or interoperability of Client’s CRM with the Tambourine Technology; and
(m) Client acknowledges that Tambourine is under no obligation to verify the accuracy, legality or ownership of any Client Data or Client Content and shall have no liability whatsoever arising from its reliance on Client’s representations and warranties hereunder.
7. INDEMNIFICATION.
7.1 Each party (the “Indemnifying Party”) agrees to indemnify, defend, and hold the other party, its affiliates and their respective officers, directors, employees, and agents harmless from and against any and all third party demands, investigations, claims, actions, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and expenses) (“Losses”) arising out of the Indemnifying Party’s: (i) gross or willful misconduct; (ii) its material breach of this Agreement; or (iii) intellectual property infringement claims related to materials provided by the Indemnifying Party. Notwithstanding anything in the Agreement to the contrary, neither party shall be entitled to indemnification for Losses arising from its own negligence, intentional misconduct, or material breach of the Agreement. Client agrees that in the event that in the event that there is a claim, dispute or settlement that the Tambourine Technology as provided under the Service Agreement infringes or violates a third party intellectual property right, Tambourine may procure for Client, as determined in its discretion, the right to continue using the Tambourine Technology impacted or replace or modify the impacted elements of the Tambourine Technology, in whole or in part, so that it becomes non-infringing.
7.2 In addition to the foregoing, Client agrees to indemnify, defend, and hold Tambourine, its affiliates and their respective officers, directors, employees and agents harmless from and against any Losses arising out of or related to: (i) any Client Data provided or shared by Client under this Agreement; (ii) any Client Content, materials, or information provided by Client to Tambourine in furtherance of the Services, including any claims alleging that such Client content, materials, or information infringes or violates any third party’s intellectual property rights or other proprietary rights; (iii) any claims arising from the accuracy, legality, or use of Client Data, Client Content, materials, or information; or (iv) arising from Client’s failure to perform under the Agreement.
7.3 The Party seeking indemnification (the “Indemnified Party”) shall promptly notify the Indemnifying Party in writing of any claim, demand, action, or proceeding for which indemnification is sought (a “Claim”). Such notice shall include a description of the Claim and, to the extent known, the amount or estimated amount of the Losses sought. Failure to provide prompt notice shall not relieve the Indemnifying Party of its indemnification obligations except to the extent the Indemnifying Party is materially prejudiced by such delay.
7.4 The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any Claim, including by providing access to relevant documents, records, and personnel. The Indemnifying Party shall reimburse the Indemnified Party for reasonable out-of-pocket expenses incurred in providing such cooperation.
7.5 The Indemnifying Party shall not settle any Claim without the prior written consent of the Indemnified Party if such settlement: (i) involves any admission of liability or wrongdoing by the Indemnified Party; (ii) imposes any injunctive or non-monetary relief on the Indemnified Party; or (iii) does not include a complete release of the Indemnified Party from all liability with respect to such Claim. Subject to the foregoing, the Indemnified Party shall not unreasonably withhold, condition, or delay its consent to any proposed settlement.
8. LIMITED WARRANTY AND DISCLAIMER.
8.1 Limited Warranty. Tambourine warrants that the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Client’s sole and exclusive remedy for breach of this warranty shall be re-performance of the nonconforming Services.
8.2 DISCLAIMER. EXCEPT FOR THE FOREGOING WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, OR NON-INFRINGEMENT. TAMBOURINE MAKES NO WARRANTY THAT THE SERVICES WILL OPERATE ERROR-FREE, BE FREE FROM LOSS, CORRUPTION, ATTACK, OUTAGES, VIRUSES, CYBER INCIDENTS, INTERFERENCE, OR OTHER SECURITY INTRUSION, AND TAMBOURINE DISCLAIMS ANY LIABILITY, INCLUDING ANY INDEMNITY OBLIGATIONS, RELATING THERETO. TAMBOURINE DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR SERVICES NOT BEING AVAILABLE FOR USE OR THE PROVISION OF SERVICES AND SUPPORT.
IN NO EVENT SHALL TAMBOURINE’S AGGREGATE LIABILITY FOR ALL DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CLIENT TO TAMBOURINE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. TAMBOURINE WILL NOT BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS (WHETHER DEEMED DIRECT OR CONSEQUENTIAL DAMAGES, OR OTHERWISE), CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN. CLIENT ACKNOWLEDGES THAT TAMBOURINE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
8.3 Third Party Technology. THE SERVICES MAY INCORPORATE OR RELY UPON THIRD PARTY SOFTWARE, PLATFORMS, APIS, OR OTHER TECHNOLOGY (“THIRD PARTY TECHNOLOGY”). TAMBOURINE MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ANY THIRD-PARTY TECHNOLOGY USED FOR THE SERVICES OR IN THE TAMBOURINE TECHNOLOGY AND HEREBY DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO ANY THIRD PARTY TECHNOLOGY, INCLUDING ANY FAILURES, INTERRUPTIONS, ERRORS, OR SECURITY VULNERABILITIES CAUSED BY SUCH THIRD PARTY TECHNOLOGY. CLIENT ACKNOWLEDGES THAT THE AVAILABILITY AND PERFORMANCE OF CERTAIN FEATURES OF THE SERVICES MAY DEPEND ON THIRD PARTY TECHNOLOGY OUTSIDE OF TAMBOURINE’S CONTROL.
9. PRIVACY, DATA PROTECTION AND DATA SECURITY. Privacy, data protection and data security shall be governed by the DPA. During the Term of this Agreement, each Party shall be responsible for ensuring that its own privacy policy and/or related privacy or data protection notices clearly and transparently disclose its respective collection, use, sharing, disclosure, storage, and security of Personal Data, in accordance with applicable U.S. Data Protection Laws including processing conducted pursuant to this Agreement and the DPA.
10. CONFIDENTIALITY.
10.1 Confidentiality Obligations. In connection with this Agreement, the Parties may have access to the other Party’s Confidential Information. Confidential Information includes all tangible materials which contain Confidential Information whether written or printed documents, computer disks or tapes whether Client or machine readable. The Parties agree to maintain the confidentiality of the Confidential Information. Each Party agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information, but in no event less than a reasonable standard of care. Without limiting the generality of the foregoing, neither Party shall permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the disclosing Party and the receiving Party shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder. A Party’s Confidential Information may only be used by the other Party in order to fulfill its obligations under this Agreement.
10.2 Exceptions Confidential Information shall not include any information that: (a) is already known to be free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the receiving party or its affiliates; (c) is received by the receiving party from a third party without any restriction on confidentiality; (d) is independently developed by the receiving party or its affiliates without use or access to the Confidential Information; (e) is disclosed to third parties by the disclosing party without any obligation of confidentiality; or (f) is approved for release by prior written authorization of the disclosing party.
11. MARKETING RIGHTS.
11.1 Marketing Rights. Client hereby grants Tambourine a perpetual, worldwide, royalty-free, non-exclusive license to use, reproduce, display, and distribute any Client Content in connection with Tambourine’s portfolio, marketing, promotional, and business development purposes. This license includes the right to identify Client as a customer and to describe the nature of the Services provided. Client agrees that Tambourine may showcase the work product on its website, in case studies, sales presentations, and other marketing materials. This license shall survive the termination or expiration of this Agreement.
11.2 Requests for Client Content. Tambourine will submit all services, publicity and marketing requests to Client for its written approval, which includes an email. Client shall respond to all material requests and requests for approvals from Tambourine WITHIN TWO (2) BUSINESS DAYS. Timely responses are necessary in order to enable Tambourine to perform the Services under this Agreement. If Client fails to respond within this timeframe, such failure shall be deemed approval of the applicable request. Delayed responses may also result in delays to the Services, for which Tambourine shall not be liable.
12. DISPUTES. The Parties shall exhaust the following provisions before initiating any legal proceedings.
12.1 When a dispute arises, the disputing Party shall give notice in writing to the other Party setting out in detail the nature of the dispute, including without limitation, (a) describing the nature and basis of the claim or dispute; and (b) setting forth the specific amount of damages or other relief sought (“Notice of Claim”).
12.2 The Parties shall use reasonable endeavors and act in good faith to resolve the dispute notified under Section 12(a) by negotiation between a senior manager of each of them and for a period of at least twenty (20) Business Days.
12.3 In the event that such internal discussions do not resolve the dispute, the Parties that either party may submit a dispute to mediation. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph. The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to AAA, or its successor, for nonbinding mediation, under its Commercial Mediation Procedures.
12.4 The Parties will cooperate with AAA and with one another in selecting a mediator from the AAA panel of neutrals and in scheduling the mediation proceedings. The Parties agree that they will participate in the mediation in good faith and share all costs equally.
12.5 All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any mediation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
12.6 In the event that the mediation does not resolve the dispute, the Parties agree that either party can commence litigation with respect to the dispute in accordance with this Agreement.
13. ADA WEBSITE ACCESSIBILITY
13.1 For purposes of the Americans With Disabilities Act, and similar state or local laws, Tambourine represents that the website (not including any third party content, integrations and external websites) makes a reasonable and good faith effort to adhere to the Web Content Accessibility Guidelines, commonly referred to as WCAG 2.2 AA or the then prevailing “Accessibility Standard” as issued and developed by the World Wide Web Consortium (W3C), which sets accessibility standards for website development, functionality and use, and any current, non-technical industry best practices. Tambourine will exclusively rely on Site Improve, a Web Accessibility software to scan and report on all accessibility issues based on WCAG 2.2 AA standards.
13.2 Tambourine will regularly monitor the website using Site Improve to endeavor, but does not guarantee, that the website continues to adhere to the prevailing Accessibility Standard after deployment and for the entirety of the life of the website while on Tambourine’s platform. Tambourine does not guarantee that the Client will be free from potential claims, complaints, investigations, actions, proceedings or lawsuits relating to website accessibility, whether frivolous or legitimate, under federal, state or local laws.
14. MISCELLANEOUS.
14.1 Relationship of Parties/Non-Solicitation. The relationship of the Parties is that of independent contractor. Neither Tambourine nor Client are, or shall be deemed for any purpose to be, employees or agents of the other or the other’s employees. Neither party shall have the authority to bind the other to any contract or obligation. Throughout the Term of this Agreement and for a period of two (2) years following its termination or expiration, Client agrees not to directly or indirectly solicit or recruit any employees of Tambourine that perform services hereunder without Tambourine’s prior written consent.
14.2 Assignment. Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement to an entity who acquires substantially all of the stock or assets of such party; provided that consent will be required in the event that the non-assigning party reasonably determines that the assignee will not have sufficient capital or assets to perform its obligations hereunder. All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
14.3 Governing Law. The Agreement is governed by the laws of the State of Florida, and the parties submit to the exclusive jurisdiction of the state or federal courts in Broward County, Florida.
14.4 Entire Agreement and Modifications. Each Party acknowledges that it has read this Agreement and further agrees that the Agreement is the complete and exclusive statement of the parties and supersedes and merges all prior proposals, understandings, and agreements, oral or written, between the parties relating to the subject matter hereof, including without limitation, the terms of any Client request for proposal. Tambourine reserves the right to amend the terms and conditions set forth in this Agreement before or after any subsequent contract is entered into by the Parties upon written notice to Client.
14.5 Conflicts. In the event of any conflict or inconsistency between this Agreement and any Service Agreement or other ancillary document (collectively, “Ancillary Documents”), the following order of precedence shall apply: (a) with respect to legal terms, including without limitation provisions relating to indemnification, limitation of liability, confidentiality, intellectual property, representations and warranties, termination rights, governing law, and dispute resolution, this Agreement shall control; and (b) with respect to operational and commercial terms, including without limitation provisions relating to scope of services, service levels, pricing, payment terms, deliverables, and timelines, the applicable Ancillary Document shall control. If such conflict cannot be reasonably categorized as either a legal term or an operational/commercial term, this Agreement shall control.
14.6 Severability. In the event any one or more of the provisions of this Agreement or of any exhibit is held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired.
14.7 Force Majeure. Tambourine shall not be responsible for failure to perform under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, pandemic, hurricanes, earthquake or serious accident, strike, labor trouble or work interruption, loss of an IP address, electrical outages, internet or system outages, or other disruption to Internet connection, or any cause beyond its reasonable control.
14.8 Notice. A notice required or permitted to be given shall be provided in writing and in English. A notice is taken to have been given (a) if delivered personally, immediately upon delivery; (b) if mailed, on the second (2nd) Business Day after posting; and (c) if emailed, on the date sent, unless the recipient is able to demonstrate that the email failed to be delivered.
14.9 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder shall preclude any other or further exercise thereof or the exercise of any other right or remedy.
Master Services Agreement & Addendums:
Last Update: 5/21/2026