March 2025
This Master Services Agreement (this “Agreement”) is entered into by and between MotionPoint Corporation d/b/a Key Content, a Florida corporation (“Key Content”) and the legal entity identified on an Order (“Customer”). Key Content and Customer are sometimes referred to jointly as “parties” or each, a “party.”
By executing an Order that references this Agreement, any individual accepting this Agreement on behalf of Customer claims the authority to bind the Customer and its affiliates to the terms of this Agreement.
Background: Customer desires to receive content marketing, online marketing services, and/or other services. Additionally, Customer can request the creation and editing of texts and articles on specific topics. Key Content agrees to provide its Services to Customer, as described in one or more order forms (each, an “Order”) and in accordance with the terms and conditions set forth in this Agreement. In consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
The following definitions govern the meanings of the capitalized terms used in this Agreement:
“Effective Date” shall mean the date the Order is signed.
“Deliverables” shall mean the specific Services that Key Content is required to provide to the Customer under an Order, as outlined in this Agreement, and in accordance with the terms and conditions set forth herein.
“Poaching” shall mean the hiring or engagement of professionals or third-party collaborators who have provided Services to the Customer through Key Content, whether as full-time employees, subcontractors, or independent service providers (collectively, “Authors”), as a result of direct or indirect solicitation by the Customer’s team. For the purposes of this definition, the Customer’s team includes Key Content’s designated point of contact, its team members, or their successors who (i) have received Services from the Authors and (ii) have directly engaged with Key Content. For the avoidance of doubt, Poaching does not include: (i) public job advertisements where Authors independently apply for a publicly posted position without any direct or indirect solicitation from the Customer; and (ii) Authors with whom the customer had an existing working relationship prior to engagement with Key Content.
“Professionals” shall mean the individual(s) or authors designated by Key Content as responsible for producing the Services and Deliverables.
“Services” refers to the content marketing, online marketing, and/or other services provided by Key Content, as specified in the applicable Order. These Services shall be delivered in accordance with the terms and conditions set forth in this Agreement.
2. SERVICES
2.1 Description. An Order shall specify and further describe the services to be provided pursuant to this Agreement which may include content marketing, online marketing services and/or other services (the “Services”).
2.2 Service Warranty and Remedies. Key Content represents and warrants that the Services will be performed or furnished in a good and workmanlike manner and in accordance with standards of care, skill and diligence consistent with recognized applicable industry practices and procedures. Additionally, Key Content warrants that it will use commercially reasonable practices to ensure that the Services will be free from plagiarism. The warranties in this section 2 will be referred to as the “Services Warranty.” Key Content’s entire liability and Customer’s sole remedy for breach of the Services Warranty, as reported in writing by Customer and verified by Key Content, will be, at Key Content’s option: (i) the re-performance of the Services that did not meet the Services Warranty, free of charge; or (ii) a refund to Customer of a sum equal to the fees paid for the Services that did not meet the Services Warranty. Key Content’s warranty obligations under this section 2 are contingent on Customer’s payment of all fees due and owing to Key Content under this Agreement or any applicable Order. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 2 ARE THE ONLY WARRANTIES RELATING TO THE SERVICES, EXPRESS OR IMPLIED, AND SPECIFICALLY THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding anything stated in this Agreement or any applicable Order to the contrary, in the event the limited remedy set forth in this section 2 is deemed by a court of competent jurisdiction to fail of its essential purpose, the limitation of liability provision in section 11 and the disclaimer of damages provision set forth in section 10 of this Agreement, together with any other provisions of similar import included in this Agreement or in any applicable Order, will survive and will not be affected thereby.
3. CUSTOMER RESPONSIBILITIES
3.1 Customer shall provide all cooperation and assistance as Key Content may reasonably request to enable Key Content to perform its obligations under, and in connection with, this Agreement. Customer shall designate an individual to work with Key Content’s relationship manager(s) to manage the parties’ relationship pursuant to this Agreement.
3.2 Customer shall comply with all applicable governing laws and regulations.
3.3 Customer will not do or say anything that is inconsistent with any Key Content policy or may reflect adversely on, or be harmful to, the business or reputation of Key Content.
3.4 Customer agrees that Key Content may use the Customer’s name and logo as part of its client portfolio on its website, as well as in sales presentations, business events, and meetings. Key Content will adhere to the logo’s style guide as provided by the customer.
4. PROFESSIONALS AND NON-SOLICITATION
4.1 Key Content is responsible for ensuring that the Professionals perform their duties in accordance with the requirements specified in an applicable Order and the terms of this Agreement. Additionally, the Professionals shall comply with the Customer’s reasonable instructions throughout the Term.
4.2 The Customer has the right to request the immediate removal of any Professional from the Services provided by Key Content, provided that the Customer submits evidence demonstrating the Professional’s incompetence, lack of technical proficiency, or temperament incompatibility. Additionally, removal may be requested if the Professional’s conduct fails to meet reasonable and generally accepted professional standards.
4.3 Any attempt by the Customer to solicit, engage, or establish direct or indirect contact or cooperation with Professionals designated by Key Content, without Key Content’s express prior written consent, shall be considered a material breach of contract. Such actions will entitle Key Content to immediately terminate this Agreement and any active Order(s) with the customer and pursue any legal claims available.
4.4 In the event of such termination under this section, the Customer shall be required to pay Key Content all outstanding fees for Services provided up to the termination date, regardless of whether they have been accepted by the Customer. This provision shall remain in effect during the Term of the Agreement and for a period of two (2) years following its termination.
5. ACCEPTANCE
5.1 Upon a request for a service, both the customer and Key Content will agree on the acceptance criteria for each Project Offer (“Acceptance Criteria”) and the acceptance tests for the deliverables (“Acceptance Tests”), both of which will be outlined in an Order.
5.2 Within two (2) weeks of an Order’s Effective Date and receipt of the necessary documentation, Key Content will submit the first portion of the deliverables (the “Partial Deliverables”) to the customer for quality assurance (i.e., for an Acceptance Test), unless the customer specifies otherwise.
5.3 The Customer shall review the Partial Deliverables and notify Key Content within seventy-two (72) hours of whether the Partial Deliverables are accepted, rejected, or require changes. The acceptance of the Partial Deliverables will confirm that the Acceptance Criteria have been met and establish the quality standard for the final deliverables. Once the standard and quality of the Partial Deliverables are accepted, Key Content will proceed to deliver the remaining deliverables. If the customer does not provide notification within seventy-two (72) hours of submission by Key Content, the Partial and remaining deliverables will be automatically considered accepted.
5.4 The Customer must provide detailed reasons for the rejection of the Deliverables. Key Content will review the rejection based on the reasons provided by the Customer and will accept the rejection only if the desired condition is consistent with the project specifications and Acceptance Criteria.
5.5 In the case of unfounded or insufficient reasons for rejection, Key Content reserves the right to reject the rejection and will be entitled to receive payment for the Deliverables rendered up to that point.
6. FEES & PAYMENT
6.1 Customer will pay Key Content the then-applicable fees described in an Order in accordance with the terms set forth herein (“Fees”).
6.2 Travel Expenses. Though travel is not typically necessary for Key Content to perform its Services, if travel is requested and approved by Customer, then in addition to the Fees, if applicable, Customer shall reimburse Key Content for reasonable, documented, out-of-pocket expenses incurred by Key Content in connection with such travel.
6.3 Payment Terms. Full payment of undisputed amounts shall be due and payable, without reduction for any offset, withholding or other claim, within thirty (30) days after the date on the invoice (unless otherwise specified on the applicable Order. All fees are listed in the currency specified in the order and are payable accordingly. If Customer requires that Key Content use a specific payment portal to receive payments, then notwithstanding any term or condition contained in an agreement relating to such payment portal, Customer shall pay for Key Content’s costs incurred, if any, to gain access to and use such a payment portal. Unpaid amounts may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Fees paid or payable are non-refundable, and Key Content will not refund any prepaid Fees to Customer in connection with any termination or expiration of this Agreement, except for termination of the Agreement for Key Content’s breach pursuant to section 12. In no event will termination or pausing of Services relieve Customer’s obligation to pay any Fees owed to Key Content. If Customer believes that Key Content has billed Customer incorrectly, Customer must dispute only those portions of the applicable invoice by contacting no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared; otherwise, the invoice shall be deemed undisputed. In addition to any other remedies available, in the event Customer does not cure non-payment of an undisputed invoice within thirty (30) days after payment becomes past due, Key Content may suspend Services until such time as payment is made.
6.4 Taxes. Customer shall pay, and shall be liable for, all taxes relating to Key Content’s provision of the Services hereunder; provided however, that Key Content shall pay, and shall be liable for, taxes based on its net income or capital. Customer shall indemnify and hold Key Content harmless in the event any taxing authority seeks to collect any tax, required to be paid by Customer pursuant to this subsection, from Key Content.
7. INTELLECTUAL PROPERTY
Each party acknowledges and agrees that, as between Customer and Key Content: (a) Customer is the sole and exclusive owner of the content that is created using the Services in connection with this Agreement ; (b) Key Content is the sole and exclusive owner of all right, title, and interest in and to its proprietary software, as well as all code, metadata, alterations, modifications, improvements, translation technology optimizations, additions, Customer feedback, any derivative works made with respect to the Services, any beta services, pre-existing documents, know-how, and all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Key Content IP”); and (c) each of Customer and Key Content are the sole and exclusive owners of their respective trademarks, service marks, trade names, and logos.
8. CONFIDENTIALITY
8.1 Confidential Information. Each party receiving information (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has and may hereafter directly or indirectly expose the Receiving Party to confidential or proprietary business, technical, supplier, or financial information relating to the Disclosing Party’s business, whether oral or written (hereinafter referred to as “Confidential Information”). Confidential Information of Key Content includes, without limitation, non-public information regarding features, functionality, design, architecture, and performance the Services, all Key Content IP, information concerning its suppliers, and the terms and conditions (including pricing) of this Agreement. Confidential Information shall also include the terms of this Agreement.
8.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
8.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) hold Disclosing Party’s Confidential Information in strict confidence, using the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) restrict disclosure of such Confidential Information to those of its officers, directors, employees, professional advisors, legal affiliates, contractors, agents and representatives with a need to know such information for the sole purpose of performing pursuant to this Agreement (“Permitted Disclosees”); and (iii) not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information.
8.4 Compelled Disclosure. Notwithstanding subsection 8.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
8.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this section 8, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
8.6 Return or Destruction of Confidential Information. Upon termination of the Term, upon Disclosing Party’s written request, the Receiving Party will, at its option, either return to the Disclosing Party or certify destruction of, any and all copies of the Disclosing Party’s Confidential Information in the possession of the Receiving Party, its employees or agents.
9. INDEMNIFICATION.
9.1 By Key Content. Key Content, at its own expense, will defend Customer against any third-party claim, suit, action, or proceeding brought against the Customer that alleges that the Services infringe any third party’s United States patent, trademark, or copyright and will indemnify Customer against all damages finally and actually paid as part of a final judgment or settlement thereof. Should Key Content’s Services become, or in Key Content’s opinion be likely to become, the subject of a claim of infringement, Key Content may, at Key Content’s sole election: (a) obtain for Customer the right to continue using the Services, pursuant to the terms and conditions of this Agreement and the applicable Order; (b) replace or modify the Services so that they become non-infringing but functionally equivalent; or (c) return to Customer an amount equal to the amount paid by Customer to Key Content for the Services based on the Services or aspects of the Services subject to the claim of infringement in the previous three (3) months and terminate the Term and each Order, or only the affected Orders. The indemnification obligation of this subsection will not apply to any claim arising out of the use of Services in a manner not intended by this Agreement and the applicable Order. Key Content’s obligations set forth in this subsection are subject to the following conditions: (i) Customer must promptly notify Key Content in writing of any such suit or proceeding; (ii) Customer must provide Key Content with sole control over the defense and settlement of such suit or proceeding (although Customer may participate in such suit or proceeding at its own cost and expense), and (iii) Customer must provide Key Content reasonable information and assistance in the defense and/or settlement of such suit or proceeding. This subsection sets forth the parties’ entire agreement regarding Key Content’s infringement of third-party intellectual property rights and provides Customer’s sole and exclusive remedy in the event a third party asserts any such infringement claim or demand.
9.2 By Customer. Customer, at its own expense, will indemnify, defend, and hold harmless Key Content (and its officers, directors, employees, agents, representatives, shareholders, attorneys and affiliates) (collectively, the “Key Content Indemnified Group”) against any third-party claim, suit, action, or proceeding brought against member(s) of the Key Content Indemnified Group that alleges or is based upon, arises out of, or is related to Customer’s breach of this Agreement or any other misuse or misappropriation of the Services.
10. DISCLAIMER OF DAMAGES.
NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL KEY CONTENT, NOR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, OR EMPLOYEES BE LIABLE IN CONTRACT, QUASI-CONTRACT, TORT, STRICT LIABILITY, WARRANTY, INFRINGEMENT ACTIONS OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SUCH AS, BUT NOT LIMITED TO, DELAY, DISRUPTION, LOSS OF PRODUCT, LOSS OF ANTICIPATED PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT OR SYSTEM, NON-OPERATION OR INCREASED EXPENSE OF OPERATION OF OTHER EQUIPMENT OR SYSTEMS, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT EQUIPMENT, SYSTEMS, OR POWER, EVEN IF KEY CONTENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EITHER BEFORE OR AFTER THE DATE OF THIS AGREEMENT OR ANY APPLICABLE ORDER. THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS UNDER THIS AGREEMENT AND ANY ORDER BETWEEN CUSTOMER AND KEY CONTENT AND THE PRICING REFLECTS THIS ALLOCATION OF RISK AND THE DISCLAIMER OF INCIDENTAL DAMAGES IN THIS PROVISION. THIS PROVISION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON AND REGARDLESS OF WHICH PARTY TERMINATES THIS AGREEMENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL DAMAGES, THE FOREGOING LIMITATIONS MAY NOT APPLY TO CUSTOMER IN THOSE STATES.
11. LIMITATION OF LIABILITY.
11.1 NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT OR IN ANY ORDER TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR AN ORDER, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE SUM OF THE AMOUNTS ACTUALLY PAID BY CUSTOMER (OR ITS AFFILIATED ENTITY, IF APPLICABLE) TO KEY CONTENT FOR THE TYPE OF SERVICE GIVING RISE TO THE CLAIM PURSUANT TO THE APPLICABLE ORDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE FIRST EVENT GIVING RISE TO A CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT). THIS REMEDY IS INTENDED TO BE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER FOR ANY BREACH OR DEFAULT OF THIS AGREEMENT OR ANY ORDER BY KEY CONTENT. THE PROVISIONS OF THIS SECTION 11 ALLOCATE THE RISKS BETWEEN CUSTOMER AND KEY CONTENT AND KEY CONENT’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY IN THIS PROVISION. THIS PROVISION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON AND REGARDLESS OF WHICH PARTY TERMINATES THIS AGREEMENT.
11.2 The exclusions and limitations in section 10 and this section 11 do not apply to either party’s indemnification obligations, a breach by either party of its confidentiality obligations, a breach by the Customer of its poaching obligations, or either party’s willful misconduct or criminal acts. Notwithstanding anything to the contrary, except in the case of willful misconduct or criminal acts, in no event will either party’s indemnification obligations exceed amounts actually covered by a party’s insurance.
12. TERM AND TERMINATION
12.1 Term. This Agreement begins on the Effective Date and continues through the expiration of the last active Order, unless terminated earlier as set forth below (the “Term”). Either party may terminate this Agreement upon written notice: (i) if the other party fails to pay any amount within thirty (30) days after it has become past due; (ii) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party; (iii) upon (x) the filing of a voluntary or involuntary petition for bankruptcy by a party or by a creditor of a party, (y) the appointment of a receiver with respect to a party’s assets, or an assignment by a party for the benefit of its creditors or (z) the occurrence of anything analogous to the events described in the foregoing subsections (x) and (y) of this Agreement; or (iv) upon mutual written agreement. For the avoidance of doubt, Customer’s non-usage and/or pausing of Services by the Customer during the Term, does not constitute a termination of this Agreement or any active Order.
12.2 Effect of Termination. Upon termination of this Agreement, all outstanding Orders shall terminate. Immediately upon termination, Customer shall pay all Fees owed for Services performed up to the date of such termination.
12.3 Survival. This subsection 12.3, and sections 4-11 and 13-18 (inclusive) shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
13. GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement is governed in all respects by the laws of the State of Florida, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter (including the extent to which any dispute is subject to arbitration pursuant to this Section) shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Broward County, Florida, by a single arbitrator. With the exception of disclosures to affiliates and legal counsel, all negotiations and arbitration proceedings related to a dispute (including a settlement, award, or the documents and briefs exchanged or produced during arbitration) are confidential and may not be disclosed by the parties except to the extent necessary for interim measures or conservatory relief, the enforcement of an arbitration award, or as required by law (subject to the requirements of Subsection 8.4).
14. AFFILIATED ENTITIES.
Subsidiaries and/or affiliates of Customer (collectively, “Affiliated Entities”) may also enter into Orders pursuant to this Agreement, and, by doing so, will be subject to and bound by all provisions of this Agreement applicable to Customer as if references in this Agreement to Customer were to the relevant Affiliated Entity. Customer will procure that, where an Affiliated Entity enters into an Order, such Affiliated Entity will comply with its terms and conditions. The liability of Customer and each Affiliated Entity in relation to each Order shall be joint and several.
15. NOTICES.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (e-mail acceptable) and be addressed according to information set forth in an Order (and if to Key Content, with a copy sent to legal@motionpoint.com). All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this section.
16. FORCE MAJEURE.
Key Content is not responsible nor liable for any delays or failures in performance from any cause beyond its reasonable control, including, but not limited to, External Quality Issues, acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, hurricanes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
17. PUBLICITY.
At Key Content’s sole expense, Customer agrees to participate in a press release and/or customer case study in a format mutually agreeable by Customer and Key Content.
18. GENERAL PROVISIONS.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with all Orders entered into hereunder and all exhibits, annexes, and addenda hereto and thereto are the complete and exclusive statement of the mutual understanding of the parties and supersede all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except that Key Content reserves the right to modify this Agreement, at any time, in its sole discretion, by providing written notice to Customer via e-mail or through the Key Content Platform. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Order, such Order shall prevail unless otherwise expressly indicated in this Agreement or such Order. For the avoidance of doubt, it is expressly understood and agreed that any terms or conditions contained in a purchase order that are contradictory to this Agreement or an Order shall be null, void, and of no force and effect (even if signed by both parties). The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. This Agreement and all Orders may be executed by original or electronic signatures (complying with the U.S. Federal ESIGN Act of 2000, 15 U.S.C. 96) and in any number of counterparts, which will be considered one instrument.