Provider and Discord have entered into this Master Services Agreement (“MSA”) as of the Effective Date. This MSA starts on the Effective Date and continues until the end of the Term. Each SOW that incorporates these MSA terms forms a separate contract.
1. Definitions
1.1 “Affiliate(s)” means any entity which (directly or indirectly) controls, is controlled by and/or under common control with a party.
1.2 “Claim” means any demands, claims, suits, proceedings, liabilities, fines, penalties, investigations and damages (including attorneys’ fees and costs) asserted against any Discord Indemnitee by a third party (including any regulatory or governmental body).
1.3 “Confidential Information” has the meaning given to it in Section 7 (Confidentiality).
1.4 “Data Privacy Addendum” or “DPA” means the data privacy addendum entered into between the parties or as otherwise provided by Discord to Provider.
1.5 “Data Privacy Laws” means all applicable laws, regulations, and other legal or self-regulatory requirements in any jurisdiction relating to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Data, including without limitation, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq. (“CCPA”), the UK Data Protection Act 2018 (“UK Data Protection Law”), the General Data Protection Regulation, Regulation (EU) 2016/679 (“GDPR”), the ePrivacy Directive (2002/58/EC), and any laws or regulations succeeding or implementing the foregoing.
1.6 "Deliverables" means all deliverables described in or provided under an applicable SOW.
1.7 “Discord” means Discord Inc., a Delaware corporation with offices at 444 De Haro Street, Suite 200, San Francisco, CA 94107 and its Affiliates.
1.8 “Discord Background IP” means any Intellectual Property Rights owned, created, developed, leased and/or licensed by Discord (or any of its affiliates), now or in the future (a) without the use or reliance on any proprietary information provided by Provider; and (b) prior to, outside of, or independently from the MSA and SOWs.
1.9 “Discord Data” means all data and information (including Personal Data) accessed by or provided or made available to Vendor in connection with the Agreement.
1.10 “Discord Indemnitee” means Discord and Discord’s and its Affiliates’ officers, directors, employees, agents, successors, subsidiaries, customers, and assigns.
1.11 “Discord Equipment” means tooling, devices, equipment (e.g., mobile phones, laptops, and security keys) or other tangible materials provided by Discord to Provider in connection with the Services.
1.12 “Discord Materials” means any specifications, documents, software, equipment, tooling, branding, content, marks, logos or other materials that Discord may make available to Provider in connection with the Services.
1.13 “Discord Policies” means all procedures and policies provided by Discord to Provider as they may be updated from time to time, including the Discord Supplier Code of Conduct, available at https://dis.gd/SupplierCodeofConduct.
1.14 “Effective Date” means the effective date of the SOW.
1.15 “Guild Agreement” means any applicable collective bargaining, union, or guild agreements, including SAG-AFTRA and the Director’s Guild of America.
1.16 “Intellectual Property Right(s)”means all current and future copyrights, trademarks, trade names, logos, service marks, trade secrets, patents, utility models, design rights, know-how and applications, moral rights, database rights, contract rights, and other proprietary rights now or hereafter recognized by the laws of any jurisdiction or country, and any applications, registrations, reissues and renewals of the same, throughout the world, all goodwill symbolized by or embodied in any of the foregoing, and all rights to sue for past, present or future infringement, misappropriation or other violations of any of the foregoing.
1.17 “Personal Data” includes “personal data,” “personal information,” and “personally identifiable information,” and such terms will have the same meaning as defined by the applicable Privacy Laws.
1.18 “Personnel” means Provider’s officers, directors, agents, consultants, contractors, and employees.
1.19 “Provider” means the legal entity defined as Provider in the SOW.
1.20 “Provider Background IP” means any Intellectual Property Rights owned, created, developed, leased and/or licensed by Provider (or any of its affiliates) now or in the future (a) without the use or reliance on any Confidential Information provided by Discord; and (b) prior to, outside of, or independently from the MSA and SOWs.
1.21 “Services” means all services specified or provided under a Statement of Work.
1.22 “Statement of Work” or “SOW” means a statement of work that is fully executed by the parties that incorporates the terms of this MSA.
1.23 “Third Party Materials” means any Intellectual Property Rights or other materials owned or developed by a third party.
1.24 “Work Product” means any ideas, concepts, processes, discoveries, developments, algorithms, models, know-how, interfaces, databases, formulae, information, materials, improvements, designs, artwork, videos, audio, content, compositions, recordings, software programs, other copyrightable works, and any other work product created, conceived, or developed by or on behalf of Provider (whether alone or jointly with others) in connection with the Services during or before the term of this MSA, including all Intellectual Property Rights therein. Work Product includes all Deliverables as well as drafts, sketches, earlier versions, or any document or media created in the process of developing or producing Deliverables.
1.25 In this MSA, “include” or “including” means “including but not limited to”.
2. Services and Deliverables.
2.1 Statements of Work. Discord and Provider may execute one or more SOWs, each must be in writing and signed by both parties. Each SOW will form a part of and be subject to the terms of this MSA, and may be amended only by written agreement of the parties.
2.2 Services; Deliverables. Provider will not perform any services until the parties fully execute an applicable SOW. Provider will perform the Services and tender Deliverables in accordance with the timelines, due dates, specifications, and other requirements described in the applicable SOW. To the extent the Deliverables include physical goods or products, then the Purchase Order Terms and Conditions{LINK} will also govern with regard to such Deliverables.
2.3 Software as a Service. If Provider is providing Discord with software as a service under an SOW, then the Software as a Service Appendix applies. To the extent there is a conflict between this MSA and the Software as a Service Appendix, the terms of Software as a Service Appendix will take precedence.
2.4 Content Production. If Provider is providing production Services, including audio or video content production, then the Production Services Appendix applies.
2.5 Event Production. If Provider’s Services or Deliverables include event production, then the Event Production Appendix applies.
2.6 Endorsement and Influencers. If Provider’s Services or Deliverables are or could be subject to endorsement or influencer laws, including the FTC’s Endorsement Guide available at https://www.ecfr.gov/current/title-16/chapter-I/subchapter-B/part-255, then the Endorsements and Influencers Appendix applies.
2.7 Contests, Giveaways or Sweepstakes. If Provider’s Services or Deliverables include the administration or facilitation of obligations in connections with a contest, giveaway or sweepstakes, then the Contests, Giveaways, or Sweepstakes Appendix applies.
3. Payment.
3.1 Fees. Subject to the terms of the MSA, including this Section 3, Discord will pay Provider the fees described in each SOW. Fees will be inclusive of all taxes, levies, and duties and, if applicable, any costs and expenses incurred by Provider under Guild Agreements. Provider acknowledges and agrees that Discord will have no obligation to pay any fees in connection with any services performed before an applicable SOW is fully executed by the parties.
3.2 Obligation. Unless provided in the applicable SOW, Discord’s payment obligation will be expressly subject to Discord’s (i) acceptance of the Services and Deliverables as specified in Section 4 (Acceptance); and (ii) receipt of a valid, correct, and undisputed invoice.
3.3 Expenses. Discord will reimburse Provider only for reasonable, verifiable, actual expenses expressly provided for in an SOW or that have been approved in advance, in writing by Discord. If requested, Provider will supply receipts and other supporting documentation for its claimed expenses.
3.4 Invoice. Unless otherwise agreed in an SOW, Provider will issue its invoice(s) to Discord via email at ap@discordapp.com on a monthly basis for all fees and expenses payable to Provider, and invoices must include hourly rates, service dates or date range. Provider will ensure that invoices include correct and complete information, PO number(s), bill-to-address, product part numbers (if applicable), quantities (if applicable), description of products or services, unit prices (if applicable), extended totals and applicable tax or other charges (including all supporting documentation Discord requests). If applicable, all taxes will be separately stated on the invoice. For jurisdictions that require tax invoices, Provider will issue Discord with a valid tax invoice that complies with applicable local tax laws. Discord will pay undisputed invoice amounts within forty-five (45) days following receipt of such invoice. Discord reserves the right to withhold payment if Provider fails to timely return Discord Materials, Discord Equipment, or Discord Confidential Information in accordance with the terms of this MSA. The parties will use commercially reasonable efforts to promptly resolve any payment disputes.
3.5 Onboarding. Provider will provide Discord all information (for example, W9, EIN, and other financial information) that Discord reasonably requests to enable Discord to receive and process invoices and make payments to Provider in a timely manner. Provider will ensure that the information it provides is accurate, complete, and up-to-date. Provider acknowledges that failure to comply with this Section 3.5 may result in delayed payment; in such event Discord will have no liability arising from such delays, including any interest, late fees, or penalties.
4. Acceptance. Upon completion of the Services and delivery of any Deliverables, Discord will, in its sole discretion, review and test the results of the Services and Deliverables to determine conformance with the applicable SOW. Provider will provide any assistance or cooperation requested by Discord in order to facilitate such review and testing at no cost to Discord. Following review and testing, Discord may provide Provider with a written notice of acceptance of the Services or Deliverables or a written statement of errors to be corrected (in each case, email suffices). Provider will correct and re-deliver any rejected Services or Deliverables at no cost to Discord, under agreed deadlines, and subject to further review and re-testing. The foregoing procedure will be repeated until Discord accepts or rejects the Services or Deliverable. If Discord rejects the Services or Deliverable for material non-compliance, then Provider will be deemed to be in material breach of this MSA, and, in addition to any other rights or remedies that Discord may have, Discord may terminate this MSA or the applicable SOW immediately upon notice to Provider.
5. Intellectual Property.
5.1 Work Product. If any Work Product is specified in a SOW, the following terms will apply:
(a) Ownership. As between the parties, Discord will solely own and retain all right, title, and interest (including all Intellectual Property Rights) in and to the Work Product. Provider will and hereby irrevocably assigns and transfers all of its right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein, to Discord. Provider will ensure that its Personnel irrevocably assign to Discord, all of their right, title, and interest in and to any Work Product, including all Intellectual Property Rights therein.
(b) License. If applicable law prevents Provider from transferring ownership of any Work Product or Intellectual Property Rights embodied therein to Discord, Provider grants Discord (and its affiliates and contractors working on Discord’s behalf) a perpetual, irrevocable, exclusive, royalty-free, fully paid-up, transferrable, worldwide license (with the right to sublicense through one or more tiers) to use, make, have made, sell, offer for sale, import, export any component of, copy, reproduce, modify, prepare derivative works of, distribute, publicly perform, publicly display, transmit and otherwise use or dispose of the Work Product or any derivatives thereof.
(c) Further Assurances. Provider will (and will cause its Personnel to) perform all acts and execute all documents reasonably necessary or requested by Discord to accomplish the assignments and other transactions contemplated in this Section 5 in a timely manner, and to otherwise perfect, register, or enforce Discord’s rights to and ownership of any Work Product or any Intellectual Property Rights therein. Provider appoints Discord’s officers as Provider’s attorney-in-fact to execute documents on behalf of Provider for this limited purpose, and the parties confirm that this appointment is coupled with an interest and is irrevocable.
(d) Moral Rights. Provider will not assert, and to the extent permitted by applicable law, otherwise waives, any moral rights in the Work Product, and will ensure that Personnel and other third parties who have moral rights in the Work Product will also not assert, and to the extent permitted by applicable law, will waive, those moral rights.
(e) Disclosure. Provider will disclose in writing to Discord all Work Product promptly upon creation or otherwise upon Discord’s request.
(f) Clearance. Unless otherwise agreed in an SOW, at its sole cost and expense, Provider is solely responsible for obtaining from all appropriate third parties all rights and licenses (including, for example, releases and waivers) necessary for Discord's use of all Third Party Materials and Provider Background IP incorporated into Services and Work Product as contemplated under the applicable SOW.
(g) Trademark Searches. Unless otherwise set forth in the SOW and solely to the extent applicable, Provider will undertake preliminary trademark searches as is reasonably necessary in all applicable territories for potential trademarks created by Provider for incorporation into Work Product. Provider will provide Discord with the results of all trademark searches and notify Discord in writing of all resulting trademark concerns. Provider will not include any potential trademarks in Work Product without Discord’s prior consent.
5.2 Third Party and Open Source Materials.
(a) No Use of Third Party Materials. Provider may not incorporate any Third Party Materials in any Work Product (nor design or produce any Work Product with a dependency on Third Party Materials) without: (i) providing Discord prior written notice, specifying in reasonable detail the Third Party Materials and the nature of the dependency on the Third Party Materials; and (ii) obtaining Discord’s prior written consent. Without limiting the foregoing, Provider will include a list of all Third Party Materials included in the Work Product or upon which the Work Product relies when it delivers the applicable Work Product to Discord.
(b) License to Third Party Materials. Provider grants to Discord a perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up, transferrable, worldwide license (with right to sublicensable through one or more tiers) to use, make, have made, sell, offer to sell, import, export any component of, copy, reproduce, modify, prepare derivative works of, distribute, publicly perform, publicly display, and transmit any Third Party Materials included in the Work Product (or upon which the Work Product relies) for the purpose of enabling Discord to exercise all of the rights vested in or assigned to Discord under this MSA.
(c) Open Source Materials. Provider will not incorporate any open source materials into any Work Product without Discord’s prior written approval. To the extent that Discord so approves the incorporation of any such open source materials into any Work Product, Provider will ensure that its use and incorporation of such open source materials comply with the applicable license terms for such open source materials. Provider will include a list of all Open Source Materials, including the applicable license(s), used in or included as part of the Work Product in the applicable SOW.
5.3 Background IP.
(a) Ownership of Background IP. Discord retains all right, title, and interest in and to Discord Background IP. Except for the licenses granted in this MSA and any SOWs, Provider retains all right, title and interest in and to Provider Background IP.
(b) License to Provider Background IP. To the extent that any Work Product incorporates or relies on Provider Background IP, (i) Provider must describe the Provider Background IP in the applicable SOW; and (ii) Provider grants to Discord a perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up, transferrable, worldwide license (with the right to sublicense through one or more tiers) to use, make, have made, sell, offer for sale, import, export any component of, copy, reproduce, modify, prepare derivative works of, distribute, publicly perform, publicly display, transmit and otherwise use or dispose of such Provider Background IP in connection with the use and exploitation of such Work Product or any derivatives thereof.
(c) Discord Materials. Discord, in its sole discretion, may provide Discord Materials to Provider in connection with its provision of Services or creation of Deliverables. If Discord provides Discord Materials to Provider for such purpose, Discord grants Provider a limited, non-exclusive, revocable, non-transferable, royalty-free license to use Discord Materials solely for the purpose of, and only to the extent needed, for performing Services for Discord, and subject to any other limitations, restrictions or conditions of use communicated to Provider by Discord from time-to-time. Provider will return or destroy (as requested by Discord) all Discord Materials promptly (and, in any event, within 5 days) upon Discord’s request and otherwise upon fulfillment of the Statement of Work or termination of the Statement of Work or MSA. DISCORD PROVIDES DISCORD MATERIALS “AS IS,” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. DISCORD IS NOT LIABLE FOR THE CONDUCT OR CONTENT, WHETHER ONLINE OR OFFLINE, OF ANY DISCORD USER.
6. Independent Contractor Relationship.
6.1 Independent Contractors. Provider is an independent contractor. Provider and its Personnel are not Discord employees. Provider is responsible for (a) its Personnel’s acts and omissions; (b) staffing, instructing, and managing its Personnel; and (c) determining its Personnel’s compensation. Provider is solely responsible for compensating its Personnel.
6.2 No Taxes and Benefits. Provider and its Personnel will not be entitled to any compensation, stock, options, or other rights or benefits provided to Discord employees, waive any right to them, and promise never to claim them. Provider will notify its Personnel of the above and will obtain a similar waiver from its Personnel. Provider is responsible for any income tax withholding applicable to its Personnel.
6.3 Termination of Personnel. Provider is responsible for all costs associated with terminating its Personnel, including: (a) costs arising under applicable law; (b) costs arising under an agreement between Provider and its Personnel; and (c) any costs incurred by Discord as a result of such termination.
7. Confidentiality; Privacy & Security.
7.1 Confidential Information. “Confidential Information” means any information that a party discloses to the other party under this MSA, and that is marked as confidential or would reasonably be considered confidential information under the circumstances. In addition, the existence of and the terms and conditions of this MSA constitutes Discord’s Confidential Information. Confidential Information does not include information that the receiving party can establish by contemporaneous written records, (i) was independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information, (ii) is rightfully given to the receiving party by a third party without confidentiality or non-use obligations, (iii) becomes public through no fault of receiving party; (iv) was known to the receiving party at the time of disclosure, without a confidential restriction; or (v) was approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized representative of the disclosing party.
7.2 Confidentiality Obligation. Subject to Section 7.3, the receiving party will not disclose the other party’s Confidential Information, except to its employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it for performance under this MSA and who are bound in writing by written confidentiality and non-use obligations no less stringent than those contained in this MSA. The receiving party will use the other’s Confidential Information only to further the purposes of this MSA and any applicable SOW(s). Each party will handle the other’s Confidential Information with at least the same degree of care that it applies to its own confidential information, but in no event less than a reasonable degree of care. Each party will ensure that its Delegates are also subject to no less protective non-disclosure and use obligations. Except for the limited rights under this MSA, neither party acquires any right, title, or interest in the other party’s Confidential Information.
7.3 Compelled Disclosure. A receiving party may disclose Confidential Information if legally compelled by a court or other government authority. To the extent permitted by law, Provider will promptly provide Discord with sufficient notice of all available details of the legal requirement and reasonably cooperate with Discord’s efforts to challenge the disclosure, seek an appropriate protective order, or pursue such other legal action, as Discord may deem appropriate.
7.4 Similar Products. Provider acknowledges that Discord may now or in the future be developing information internally, or receiving information from other parties, that is similar to proprietary information of Provider. Nothing in this MSA will prohibit Discord from developing, manufacturing, marketing, selling, servicing, or supporting (or having developed, manufactured, marketed, sold, serviced, or supported) its products, concepts, systems, or techniques that are similar to or compete with the products, concepts, systems, or techniques contemplated by or embodied in proprietary information of Provider.
7.5 No Publicity. Provider may not use Discord’s name, identify Discord, or make any public statement regarding the Services or this MSA without Discord’s prior written approval in each instance. If Discord grants Provider written approval to use any Discord Materials in a public statement, Provider will comply with all Discord-provided guidelines, including discord.com/branding.
8. Data Usage and Controls.
8.1 Data Privacy; Security.
(a) Business Contact Information. Each party, and its Personnel, may provide business contact information to the other party for the purpose of receiving or providing Services under this MSA ("Business Contact Information"). If any Business Contact Information constitutes Personal Data (as defined under applicable Data Privacy Laws), the Receiving party will process such Business Contact Information for the sole purpose of fulfilling its obligations under this MSA (and in accordance with all applicable Data Privacy Laws) and treat Business Contact Information that it receives as Confidential Information of the Disclosing party. Neither will: (i) sell or share Business Contact Information it receives, or (ii) collect, retain, use, or disclose Business Contact Information for any purpose other than as described above.
(b) Discord Systems Access. If Provider or its Personnel are provided access to any Discord systems, application programming interface(s), computer systems, infrastructure, databases, software, applications, facilities, or networks, including any third party application, platform or system that is accessed, deployed or utilized by Discord (“Discord Systems”) or Discord Data in connection with the performance its obligations hereunder, such access and use will be limited only to those Personnel granted access by Discord, solely for the performance of Provider’s obligations and at all times consistent with the written requirements provided by Discord to Provider. Provider will, and will cause its Personnel, to comply with all system security policies, standards, procedures, and requirements as provided by Discord. Provider is responsible for any Security Breach resulting from its or its Personnel’s acts or omissions.
(c) Data Privacy; Data Processing Addendum. If Provider has or will have access to any Personal Data of Discord’s users or employees in connection with this MSA, then Provider will (i) enter into a Data Privacy Addendum with Discord prior to accessing, receiving, or processing any Personal Data; and (ii) comply with all applicable Data Privacy Laws and written requirements provided by Discord.
(d) Discord Provided Equipment.
(i) If Discord provides any Discord Equipment to Provider in connection with and to facilitate the provision of the Services, Provider may only use Discord Equipment to perform the Services and not for any other purpose and will not allow any other person or entity to use or access the Discord Equipment.
(ii) Provider will take reasonable care to safeguard any Discord Equipment in its possession or control against any theft, damage or other loss.
(iii) Promptly (and in any event within 5 days) after completion of the Services (or earlier upon Discord's request) Provider will return any Discord Equipment to Discord in accordance with Discord’s instructions.
(iv) Upon becoming aware of any theft of, significant damage to, or loss of any Discord Equipment, Provider will promptly (and in any event within 5 days) notify Discord thereof in writing and cooperate with Discord as it deems necessary to investigate, repair, locate, disable, wipe the contents of, and/or recover that Discord Equipment, and without limiting any of Discord's other rights or remedies, Discord reserves the right to set off the fair market value (as determined in Discord's reasonable discretion) of such Discord Equipment against any amounts payable to Provider under this MSA.
8.2 Data Destruction. Within sixty (60) days of the end of the Term, Provider will, unless legally prohibited from doing so or otherwise instructed by Discord, securely delete or destroy all copies of Confidential Information remaining in Provider’s possession or control, including any Discord Data, and will promptly confirm such deletion or destruction in writing to Discord.
9. Term and Termination.
9.1 Term. This MSA takes effect on the Effective Date and continues unless terminated as provided in this MSA (the “Term”).
9.2 Termination for Convenience. Subject to Section 9.4(c), Discord may terminate this MSA (including all open SOWs) or any individual SOW at any time, for any reason with written notice to Provider.
9.3 Termination for Cause. Either party may terminate this MSA (including any open SOWs) or any individual SOW immediately if the other party has materially breached the MSA (or any SOW(s)) and failed to cure such breach within thirty (30) days after notice by the non-breaching party is given.
9.4 Effect of Termination.
(a) Termination of the MSA cancels all SOWs and terminates all licenses that Discord granted under the MSA or any SOW. For clarity, termination of an individual SOW does not terminate any other SOW or this MSA.
(b) Immediately following termination of this MSA for any reason, Provider will promptly deliver to Discord (i) all Work Product, including all work in progress on any Work Product not previously delivered to Discord (if any); and (ii) unless Discord has requested that Provider destroy it in accordance with Section 8.2 (Data Destruction), any Confidential Information and Discord Materials in its possession.
(c) Discord will pay Provider any accrued but unpaid fees due and payable to Provider pursuant to Section 3 (“Payment”). Discord’s sole liability in the event of termination will be limited to payment for the Services and/or Deliverables it accepts before the effective date of termination.
(d) Following the termination of this MSA, the parties will cooperate in good faith for a wind-down period following to ensure a smooth transition and minimal disruption to Discord’s business operations.
9.5 Survival. Sections 3 (“Payment”), 5 (“Intellectual Property”), 7 (“Independent Contractor Relationship”), 7 (“Confidentiality; Privacy”), 8 (Data Privacy; Security), 9 (“Term and Termination”), 10 (“Representations and Warranties”), 10 (“Indemnification”), 12 (“Limitation of Liability”), and 13 (“General”) will survive any termination of this MSA.
10. Representations and Warranties.
10.1 Mutual. Each party represents and warrants that it has full power and authority to enter into and fulfill its obligations under this MSA.
10.2 Provider. Provider represents and warrants that:
(a) Performance Standard. The Services will be performed in a professional manner and in accordance with industry best standards and practices, and the Services and Deliverables will meet the specifications and requirements described in the applicable SOW.
(b) No Conflicts. There are no actual or potential conflicts of interest concerning the Services or Work Product. Provider and its Personnel’s fulfillment of their obligations under this MSA will not breach any obligations they have to any third party.
(c) No Use of Third-party Confidential Information. In performing the Services, Provider will not use or bring to Discord or incorporate into any Work Product any third party’s confidential or proprietary information unless Provider obtains the third party’s and Discord’s prior written consent.
(d) Intellectual Property Rights. Provider has and will maintain the rights to grant the rights and licenses described in this MSA (including under any applicable SOW) for all Work Product. Neither the Services, Work Product nor any element thereof will infringe upon or misappropriate any Intellectual Property Rights of any person, whether contractual, statutory, or common law. Discord’s use and exploitation of any Deliverable will not require the payment of any royalties, fees, taxes or benefits to any person, entity or union (including but not limited to Provider), other than the fees expressly payable to Provider under this MSA.
(e) Compliance. Provider will comply with all applicable laws and regulations when providing the Services and Work Product, including:
(i) import and export laws and trade sanction regulations;
(ii) commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010;
(iii) data protection laws and regulations, including all Data Privacy Laws; and
(iv) employment and occupational health and safety laws and regulations, including those related to employment practices, wages, and worker classification.
(f) Viruses and Malicious Code. The Work Product will be free from any viruses or other malicious code or any code designed to disable or permit Provider or any third party to access any computer program or system or other device (e.g., time locks, trap doors or drop dead devices).
(g) Restriction on Use of Discord Data. Provider will not use any of Discord Data to which Provider has access to train any algorithm or model, including any large language models, generative AI, or other artificial intelligence technology.
(h) Personnel. All Personnel who perform Services for Discord will meet the guidelines described in the applicable SOW. If any Personnel do not meet, or cease to meet, the guidelines described in the applicable SOW, Provider will immediately deny any such person’s access to Discord information, Discord Equipment, Discord interfaces, and Discord’s Confidential Information to the maximum extent that Provider is able.
(i) Agreements with Personnel. All Personnel who perform Services have and will during the Term maintain valid work authorizations (to the extent required by law), and are and will during the Term be bound by written agreements with Provider under which: (i) Provider owns or is assigned exclusive ownership of all Deliverables; and (ii) Personnel agree to limitations on the use and disclosure of Confidential Information no less restrictive than those provided in Sections 7 (“Confidentiality”) and 8 (Data Privacy; Security). Provider will maintain records of all such authorizations and agreements during the Term and for a period of three (3) years thereafter, and will provide such records to Discord upon request during and after the Term.
(j) No Conflicts. There are no actual or potential conflicts of interest concerning the Services.
(k) Discord Policies. Provider will and will ensure that Personnel comply with all of the Discord Policies and procedures provided to Provider in writing from time-to-time, including any codes of conduct, data access, systems access or use, travel and entertainment, or policies relating to security, safety, health, anti-discrimination, ethical sourcing, anti-bribery and privacy. Discord retains the right to modify and update Discord Policies.
11. Indemnification.
11.1 Provider will defend, indemnify, and hold harmless Discord Indemnitees from and against all Claims asserted against any Discord Indemnitee arising from or related to:
(a) Provider’s negligence, willful misconduct, fraud, misrepresentation, or violation of applicable laws;
(b) Any property damage, personal injury, or death related to Provider’s performance of the Services;
(c) Any allegation that Discord’s receipt, use, possession, reproduction, distribution or sale of Services or Deliverables violates, infringes, or misappropriates a third party’s rights, including Intellectual Property Rights (such allegation is an “IP Claim”).
(d) Any breach of Section 7 (“Confidentiality”);
(e) Any breach of Section 8 (“Data Privacy; Security”) or the Data Privacy Addendum (if applicable), or violation of applicable Data Privacy Laws;
(f) Provider’s breach of Section 9 (“Representations and Warranties”); and
(g) Any allegations that Personnel are entitled to employee compensation, benefits, or other rights.
11.2 If any IP Claim occurs (or in Discord’s opinion is reasonably likely to occur) that would enjoin or threaten to enjoin Discord’s use and exploitation of any Deliverable, Provider will promptly, at Discord’s sole option, either: (a) procure for Discord the right to continue to use and exploit such Deliverable as contemplated in this MSA; or (b) replace or modify such Deliverable so that it becomes non-infringing without any loss in quality, features or functionality (as applicable), and in each case of (a) and (b), at Provider’s sole cost and expense. If Provider is unable to fulfill its obligations under the foregoing sub-clause (a) or (b), as applicable, within thirty (30) days, then without limiting any other remedy available to Discord, Discord may terminate this MSA without any further liability or obligation to Provider.
11.3 Discord will promptly notify Provider of a Claim and reasonably cooperate with the Provider in defending the Claim. Discord may join in the defense with its own counsel at its own expense. Provider will control the defense of Claims, provided that any settlement requiring Discord to admit liability, pay any sums, or take (or refrain from taking) any action, will require Discord’s prior written consent.
12. Limitation of Liability.
12.2 LIMITATIONS. SUBJECT TO SECTION 12.2 (“EXCEPTIONS TO LIMITATION OF LIABILITY”), NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS MSA FOR: (A) THE OTHER PARTY’S LOST REVENUES; (B) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE BY THE PARTIES AS OF THE EFFECTIVE DATE); OR (C) EXEMPLARY OR PUNITIVE DAMAGES; AND EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS MSA WILL NOT EXCEED THE GREATER OF: (A) US $50,000; OR (B) THE AMOUNT DISCORD PAID TO PROVIDER UNDER THIS MSA FOR THE TWELVE (12) MONTHS PRECEDING THE SUBJECT CLAIM.
12.2 EXCEPTIONS TO LIMITATIONS OF LIABILITY. NOTHING IN THIS MSA EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS PERSONNEL; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) BREACH OF SECTION 5 (“INTELLECTUAL PROPERTY”), SECTION 7 (“CONFIDENTIALITY”), OR SECTION 8 (“DATA PRIVACY; SECURITY”); (D) INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (“INDEMNIFICATION”); OR (E) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. General.
13.1 Insurance. Provider will maintain the required insurance, as applicable, in accordance with Exhibit A (“Insurance”).
13.2 Records. During the Term and for no less than three (3) years following the Term, Provider will maintain complete and accurate records relating to the MSA, including records and supporting evidence relating to the calculation of all invoices issued under this MSA.
13.3 Audit. During the Term and for three (3) years following the Term, Provider will allow and enable Discord and a third party representing Discord to audit Provider’s compliance with this MSA by inspecting and reviewing Provider’s (and its Personnel’s) facilities, practices, policies, and relevant records. Provider will promptly implement reasonable corrective action to remedy any material non-conformance with the Discord Policies or the MSA identified by Discord. If Discord or its representative discover that any amounts previously invoiced by Provider were more than what Discord actually owed Provider under the MSA, Provider will promptly (and in any event within 30 days after notification thereof) pay such amount to Provider. Provider will reimburse Discord for all reasonable audit costs if the price discrepancy for any particular invoice exceeds 3 percent.
13.4 Notices. All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when received if delivered in person, (b) when receipt is verified in writing if delivered by overnight courier, (c) when verified by receipt if delivered by registered or certified mail, or (d) when verified by electronic logs if delivered by email. The address for notices to Discord’s Legal Department is legal.notices@discord.com. The address for notices to Provider is the address provided in the applicable SOW, or in any case, the most recent SOW.
13.5 Assignment. Neither party may assign or transfer any part of this MSA without the written consent of the other party, except that Discord may assign this MSA without such consent to an affiliate or to an acquirer or successor in interest in connection with a merger, consolidation, restructuring or a sale of all or substantially all of Discord’s stock, business or assets to which this MSA relates. Any other attempt to transfer or assign is void.
13.6 Subcontracting. Provider may not delegate or subcontract any of its obligations under this MSA without Discord’s written consent. Provider will remain liable for all subcontracted obligations and all acts or omissions of its subcontractors.
13.7 Change of Control. During the Term, if Provider experiences a change of control (for example, through a stock purchase or sale, merger, sale of all or substantially all of its assets, or other form of corporate transaction), then (a) Provider will give written notice to Discord within thirty (30) days after the change of control; and (b) Discord may terminate this MSA.
13.8 Force Majeure. Neither party will be liable for a failure or delay in performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was unforeseeable and was beyond the party's reasonable control; provided that (a) the affected party notifies the other party of any such failure or delay and the underlying cause within five (5) days of becoming aware of such failure or delay; (b) such failure or delay could not have been avoided by commercially reasonable precautions and cannot be circumvented through the use of commercially reasonable alternative sources; and (c) such affected party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible. If the Services are suspended for more than fifteen (15) days as a result of a force majeure event as described in this Section, Discord may terminate this MSA (or the affected SOW) upon notice to Provider and will be entitled to a refund of any pre-paid amounts under this MSA attributable to the period of performance following such suspension.
13.9 No Waiver. Failure to enforce any provision will not constitute a waiver.
13.10 Severability. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision's essential purpose.
13.11 No Agency. The parties are independent contractors, and this MSA does not create an agency, partnership, or joint venture.
13.12 No Third-party Beneficiaries. There are no third-party beneficiaries to this MSA.
13.13 Equitable Relief. Nothing in this MSA will limit either party’s ability to seek equitable relief.
13.14 Dispute Resolution. If there is any dispute in connection with this MSA, Provider will, prior to filing any claim in court or other legal proceeding (a) send notice of the dispute to Discord at disputes@discord.com (or other email provided by Discord from time to time); and (b) negotiate in good faith a settlement with Discord for thirty (30) days following that notice.
13.15 Governing Law; Arbitration.
(a) The Federal Arbitration Act, federal arbitration law, and New York law will apply, regardless of conflict of laws rules. Any disputes that are not subject to arbitration will be resolved exclusively in the state or federal courts in New York, New York, and the parties each consent to venue and personal jurisdiction in these courts. The parties agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
(b) Except as described in Section 13.15(c), below, the parties agree to resolve any dispute or claim relating to this MSA through final and binding arbitration in New York, New York. The arbitration will be conducted by a single arbitrator, governed by this MSA and the American Arbitration Association Rules and Procedures, excluding any rules or procedures governing or permitting class or representative actions (the “AAA Rules”). If any conflict between this MSA and the AAA Rules, this MSA will prevail. The decision of the arbitrator will be in writing and binding on the parties, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Dispositive motions will be allowed in the arbitration. Except as explicitly described in this arbitration section, the arbitrator will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this MSA, including, but not limited to any claim that all or any part of this MSA are void or voidable, and any dispute regarding the payment of AAA administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator must follow this MSA and can award the same damages and relief as a court. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
(c) Notwithstanding anything to the contrary, the provisions of Section 13.15(b) do not apply to (i) any dispute alleging infringement of Intellectual Property Rights or breach of confidentiality; (ii) the issue of whether a claim must be arbitrated; or (iii) the seeking of temporary or preliminary injunctive relief to maintain the status quo while the arbitration of the substantive issues is pending.
13.16 Entire Agreement. This MSA, including any SOWs, is the parties’ entire agreement relating to its subject, and supersedes any prior or contemporaneous agreements on that subject. The parties may execute this MSA in counterparts, including facsimile, PDF, or other electronic copies, which taken together will constitute one instrument. Any amendment must be in writing and expressly state that it is amending this MSA.
13.17 Order of Precedence. The terms of this MSA will govern all services undertaken by Provider for Discord and will take precedence over conflicting terms in a SOW; however, if the SOW expressly states that certain terms set forth in the SOW are intended to supersede the terms of this MSA, then, in the event of conflict, those terms of the applicable SOW will control only for the Services and Deliverables identified in that SOW.
EXHIBIT A
INSURANCE
Provider will maintain, at its expense, the following minimum insurance coverage in full force and effect during the term of the MSA:
1. Standard Coverages.
1.1 Commercial General Liability (including contractual liability and products liability coverage). On an occurrence basis for bodily injury, death, "broad form" property damage, and personal injury, with coverage limits of not less than $2,000,000 per occurrence.
1.2 Umbrella (excess) Liability. On an occurrence form, for limits of not less than $2,000,000 per occurrence.
1.3 Workers Compensation & Employers Liability. Provider will maintain workers compensation insurance as required by law in the state or jurisdiction where the services will be provided, including employer’s liability coverage for injury, disease, and death, with coverage limits of not less than $1,000,000 per accident and employee.
2. Specific Coverages.
2.1 Auto Liability. If Provider’s provision of Services includes driving, then Provider will additionally maintain coverage of all owned, non-owned and hired vehicles with coverage limits of not less than $1,000,000 per occurrence for bodily injury and property damage.
2.2 Professional Liability. If Provider’s provision of Services includes consultative, design, or development services, then Provider will additionally maintain professional liability insurance, with coverage limits of not less than US$2,000,000 per claim.
2.3 Commercial Crime. If Provider’s provision of Services includes access to financial information, funds, payments, or other financial records, then Provider will additionally maintain commercial crime insurance on an occurrence form with coverage limits of not less than US$1,000,000 annual aggregate.
2.4 Network Security and Privacy Liability. If Provider will collect, store, process or otherwise access any data related to Discord, its customers, or its employees, then Provider will additionally maintain network security and privacy liability insurance with coverage limits of not less than US$5,000,000 per claim, that includes coverage for: (A) Provider’s unauthorized disclosure of, or failure to properly handle, personal or other confidential data; and (B) financial loss, including any related defense expense, resulting from Provider’s wrongful acts in rendering Services. If Provider’s professional liability policy includes coverage for network security and privacy liability, then any combined single limit for the policy must be the sum of the limits required for each (i.e., US$5,000,000).
3. Insurance carriers will be rated A- or better by A.M. Best Company. The liability policies listed above will name Discord as an additional insured.
4. Provider’s coverage will be considered primary without right of contribution to Discord’s insurance policies. The policies listed above will contain a severability of interests and waiver of subrogation clause in favor of Discord’s. Policies will provide notice of cancellation in accordance with policy provisions.
5. If any of the required insurance is on a “claims made” basis and does not include an extended reporting period of at least three (3) years, Provider will maintain either “tail” coverage or continuous claims made liability coverage, provided the effective date of the continuous claims made coverage is on or before the effective date of this MSA, for a minimum of three (3) years following the later of (i) Provider’s completion and Discord’s acceptance of all Services and Work Product, including any Deliverables under this MSA, or (ii) Discord termination of this MSA; or (iii) the expiration of all warranty periods provided under this MSA.
6. In no event will the foregoing coverage limits affect or limit in any manner Provider’s contractual liability for indemnification. Provider will maintain insurance coverage at levels appropriate to meet the indemnification obligations under this MSA.
7. Provider will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required of Provider under this section. All of Provider’s activities under this MSA will be at Provider’s own risk, and Provider’s employees and agents will not be entitled to any benefits under the policies of insurance maintained by Discord.
8. Provider will maintain insurance coverage at its expense for the term of any SOW. Upon Discord’s request, Provider will provide Discord (or its third-party Providers) with documentation reasonably satisfactory to Discord that evidences the required coverage.