Master Service AgreementAuthor: sdadmin
This Master Services Agreement (the “MSA”) is entered into by and between Social Doctor LLC (“Company”) and Client for good and valuable consideration, receipt and adequacy of which are hereby acknowledged. Company and Client agree to be legally bound as follows:
This MSA along with the accompanying Statement of Work (“SOW) shall define and govern the obligations of the parties, the provision of services, and payment terms for services rendered. Together the SOW and MSA constitute the Agreement (the “Agreement”) between the parties. The SOW is incorporated herein by reference as if fully rewritten here. The SOW may, from time to time, be amended upon the written consent of both parties. Execution of this Agreement is acceptance of all rates, terms and conditions between the parties, including but not limited to the scope of the project, and the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefore. In the event of any conflict between the terms of the SOW and the terms of this MSA, the terms of the MSA shall control.
The term of this Agreement (the “Term”) commences on the date Client executes the SOW, and this Agreement. Where the execution dates differ, the earliest date controls. This Agreement remains in full force and effect until the completion of the Project, and Client’s payment of all fees and expenses including Change Order fees and new proposal fees, if any; and any fees and expenses related to any Third Party services incurred for the Project. The Term of this Agreement may be extended by mutual written agreement of the Parties.
3. Custom Products and Services.
All services and products provided under this Agreement are marketing strategy and materials custom designed for each client. Because they are customized for each client, work will only commence when Client has executed this Agreement and, Company receives the first installment payment.
Custom Marketing Materials include the following components:
A. Custom Design: Production of a custom visual theme (design) will be provided by Company.
- The Custom Design will include up to two (2) design components from which Client may choose and approve one (1) composition. Original composition will be submitted to Client for review as a Static JPEG image.
- Client may request up to three (3) revisions of the chosen design composition image during the design approval process. Revisions in excess of the three (3) allotted will be billed at the rate of one hundred and fifty dollars ($150.00) per hour, one-hour minimum.
- Client may purchase additional design compositions at a cost of five hundred dollars ($500.00) per composition.
B. HTML Programming Build: Upon approval of the design composition image, Company will begin HTML Programming Build of custom marketing materials based upon approved image.
- Client may request one (1) design revision during the programming build process.
- Design revisions in excess of the one allotted will be billed at the rate of one hundred and fifty dollars ($150.00) per hour, one-hour minimum.
- Once the programming build process has begun, Client requested changes to design, file structure, layout and navigation are not permitted. If Client requests changes to these marketing material elements (design, file structure, layout and navigation) after programming has begun, and if the requested changes require Company to start a new or substantially new HTML programming build, at the discretion of the Company, Client may be required to purchase the additional HTML programming build at the cost of five hundred dollars ($500.00). Additional programming builds may be purchased at a cost of five hundred dollars ($500.00) per build.
C. Custom Content: Generation of original marketing materials content will be provided by Company.
- Marketing materials include blog information, body content, formatting, Meta data, and taglines.
- Sample Content Draft. Original content will be drafted per page based on the size of the project scope as described in the SOW. Company will provide a Sample Content Draft to Client for approval prior to beginning development of the remaining content. Upon Client’s approval of Sample Content Draft, Company will draft content for the remaining project scope and submit to Client for approval.
- Content Draft. Upon Company submission of the Content Draft, Client may request up to three (3) revisions of the content. A revision is defined as any substantive editing, rewriting, or additional writing done in response to Client’s requests, comments or suggestions involving the entire or a substantial majority of the Content Draft. Content Draft revisions in excess of the original three (3) allotted shall be billed at the rate of one hundred and fifty dollars ($150.00) per hour, one-hour minimum. Client requested revisions to the Sample Content Draft are not counted as content revisions. Upon approval of the Content Draft, Client requested changes to these marketing elements is not permitted. If Client requests changes to these marketing elements once the Content Draft has been approved, and if requested changes require Company to alter design, HTML build, or draft new or substantially new content, additional time to revise or alter these components shall be billed at the rate of one hundred and fifty dollars ($150.00) per hour, one hour minimum. Client may elect to provide original content with or in place of content developed by Company.
- Blog. Blog is defined as an open-source blog attached to and designed to match the Client’s website. Client shall be responsible for all posts and comment management. Company will offer limited technical support. Technical support is available online from the blog developer. Blog includes the following features: WordPress or equivalent open source blog application and installation on a Company built Website, visually consistent with Website design, and Company provided training on use of the blog.
Company recommends Client consult with its legal counsel to ensure compliance with all Federal and State laws regarding content and policies for the Blog. Company makes no representation or warranties regarding legal compliance.
4. Client representations and warranties.
Client represents and warrants that: (1) it is authorized and has the right to contract for the service(s) and/or product(s) rendered by Company; (2) is authorized and has the right to grant the Company the licenses granted herein; (3) it is authorized and has the right to use without limitation any and all of its illustrations, copy, photographs, personal or corporate names, copyrighted materials, graphic or pictorial reproductions, trade names, trademarks, endorsement language, and any other items used in the marketing materials; (4) it is authorized to execute this contract and undertake its performance obligations and duties, and this Agreement does not violate any third party agreement to which Client is a party; (5) all materials and content provided to Company by Client comply with all laws or applicable regulations; (6) it will not use Company’s trademarks, trade names or company corporate names without Company consent; and (7) no materials provided and used in the Company products and services infringe upon any intellectual property, publicity, or privacy rights of any third party and are not defamatory.
The Client warrants that all assets, concepts, materials, specifications, information and instructions provided by Client or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties.
5. No Guaranty, Warranty or Contingency.
Company makes no guaranty of any particular outcome as a result of the services and products provided to Client. Fees are not contingent on any matter beyond the terms in this Agreement.
To the maximum extent permitted by law, the services and products provided by Company are provided “as is” without warranty of any kind, whether express or implied and including, but not limited to, any implied warranty of merchantability, non-infringement and fitness for a particular purpose. Company does not guarantee that use of the services will be error free or uninterrupted.
6. Acceptance of the Work Product.
Work product is defined as the final deliverables. Each final work product or deliverable will be deemed accepted if, no later than the end of the business day, Pacific Standard Time, fourteen (14) days after delivered to Client, Client does not reject the Deliverable by sending Company written notice detailing the reasons for the rejection and reasonable modification guidelines. Company is not responsible for delays, errors or omissions resulting from Client’s action or inaction, and will not be liable for any claims related to materials, specifications, and information provided by Client to Company for the Project.
7. Additional Services and Project Changes.
a. Company standard rates and terms apply to all services and products requested by Client that are outside the scope of the SOW. All changes, modifications or additions must be in writing and accepted by the parties to be effective. (“Change Orders”). Each Change Order that is accepted and executed by the parties is hereby incorporated herein by this reference.
b. Any changes, modifications, additional services and products not the subject of a change order agreed to by the parties, shall be the subject of a new Proposal which once accepted and executed, shall be incorporated by referenced herein.
c. Client will be notified in advance for pre-approval of any expenses in excess of more than ten percent (10%) of those set forth in the SOW.
8. Company Performance.
Company agrees to perform the services as stated in this Agreement; and will include any other tasks reasonably necessary to the completion of the Services. Company will provide services in a timely fashion and in a good faith effort to achieve the results desired by both parties. No performance penalty will be charged if the Company does not perform the Services within the suggested time frame provided.
9. Client Obligations.
Client agrees to cooperate with Company by being available for project reviews, accepting phone calls and returning phone calls and emails as needed. Client agrees to provide all information and materials required by the Company in a timely fashion, in order for the Company to perform the services identified in the SOW, and complete the project in a timely fashion. Client acknowledges its obligation to review the materials and services provided by Company, in a timely fashion so as to avoid impacting project delivery time.
Company’s ability to perform its obligations under this Agreement are dependent on the Client fulfilling its obligations. Company shall not be liable for any costs, charges or losses sustained by Client arising directly from any failure of Client to fulfill its obligations under this Agreement.
Where the Client provides photographs, illustrations or other visual materials, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. Client shall pay all fees and expenses required to bring nonconforming materials up to such standards.
Client is responsible for obtaining all legal clearances required for the performance of the services hereunder. Client shall indemnify, defend at its own cost and expense, and hold harmless the Company and its officers, employees and agents from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of Client.
Where Client intends to integrate third party services into the products and services provided by Company, it is Client’s responsibility to provide the necessary information to Company to accomplish this. Client is responsible to pay all expenses that exceed regular contracted maintenance or are expenses beyond the scope of work under the SOW.
10. Trademarks and Copyright.
Client grants to Company a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Client (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Services in accordance with this Agreement. Such License shall terminate immediately upon termination of this Agreement.
11. All Sales Are Final.
All sales pursuant to this Agreement are Final. Client is obligated to pay all Project fees and expenses in the amounts and according to the payment schedule in the SOW. There are no refunds for contracted services for any reason. If Client chooses to discontinue Services for any reason, Client remains liable for all sums due and owing for under this Agreement.
12. Additional Fees and expenses.
Additional fees and expenses for changes to the project that are the subject of a revision under Section 3, an approved Change Order or a New Proposal agreed to by the parties; and fees for services by third parties are the client’s responsibility.
13. Payment Obligations.
Client is obligated to pay Company, the full project price, in accord with the pricing and payment schedule, and terms and conditions specified in this Agreement. Payment is not contingent on receipt of a Company invoice. In no event will any payment under this is Agreement be contingent to any terms outside this Agreement. Where payment is made by credit card, Client expressly agrees not to charge back any amounts and agrees to follow the dispute resolution procedures specified in Section 14.
a. Failure to pay any payment when due, or if any check is dishonored or credit card charge is refused or charged back, Client’s account will be deemed delinquent. Thereafter, all outstanding charges shall bear interest at the rate of 1.5% per month.
b. Client shall have fifteen (15) days from the date the account became delinquent to make all payments plus interest, bank charges and credit card processing fees associated with the delinquency. If Client fails to correct any payment problems after notice and an opportunity to correct the problem, Company, in its discretion only, has the right to declare all current and pending installments immediately due and owing and seek collection. If Company seeks collection, it shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, reasonable attorney fees.
c. Delays resulting from the action or inaction of a Client may result in adjustment in Company fees. All of Client’s rights herein are conditioned on Company’s receipt of full payment of all installment payments and other charges. Company may suspend performance and withhold delivery of materials until payment in full of all installments due have been received by Company. Company shall not be liable for any damages, losses or liabilities that may arise out of Company’s suspension of performance and/or withholding of materials due to Client’s non-payment.
14. Fee Disputes.
Client may only dispute charges and fees if it has a reasonable basis for such dispute. To the extent Client intends to dispute any payments due under this Agreement, Client shall provide a written report to Company within two (2) business days before payment is due, identifying, in detail, the reason for the dispute and providing evidence to support its disputed claim. Company may consider such report, but shall have final authority to determine the refund amount, if any. Credit Card Charge-Backs are considered a breach of Client’s obligation under this Agreement.
15. Ownership and Use of Company Developed materials.
a. Company owns all designs, graphics, text and source files. When Company receives payment in full of all project fees and expenses, and other outstanding charges for Company services, ownership to the work product shall transfer to and becomes the property of the Client. The work product is defined as the final deliverables. If necessary, additional files will be made available for purchase.
b. All of the Company’s intellectual property, copyright, trademarks and related materials (the “Intellectual Property”) remain the property of the Company. The Image gallery and Video gallery software, and the Online Reputation Management tools are proprietary to the Company. Use requires a renewal fee. Copyrighted images are incorporated in the work created for Client. The use of these images is governed by and subject to the Third Party’s terms of Agreement. These images may be used only so long as they remain within and a part of the Company work provided to Client. Client agrees it will use these images only so long as they remain within and a part of the work created for Client and shall not seek to reuse these images in any other manner.
c. Company retains the right of authorship and credits for the products developed for Client, at all times. Client agrees that it will preserve the “designed by” credit links in the footer of Company designed websites, during and after ownership passes to and becomes the property of Client. Client agrees that it will not attempt to in any way alter, modify, eliminate, or conceal the copyright attribution to the Company so long as it uses the products created for it.
d. Company retains the right to use and distribute the work as part of its portfolio for promotional purposes.
e. Company shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “the Work”) which have been presented to the Client but not included in the final work product.
f. All rights not expressly granted herein are reserved by Company for itself.
16. Hosting and Domain Name.
In addition to all other services set forth herein, Company may provide Client with domain name registration and hosting services. In consideration for such services, Client shall pay Company the Monthly Hosting Fee and annual domain registration fees as set forth in the SOW.
Upon termination, hosting services including the responsibility for domain name registration, renewal and WHO IS information tied to that domain shall terminate, unless otherwise agreed by the parties. Management of the domain may be transferred to a party designated by Client, at Client’s request. Company shall have no further obligations to maintain the domain or provide notices to anyone regarding the domain.
Confidential Information (the “Confidential Information”) includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated Company Services, products, processes, techniques, know-how, and any information or data developed pursuant to the performance of this Agreement. Further, Confidential Information refers to any data or information relating to the either Party, whether business or personal, which would reasonably be considered to be private or proprietary to the disclosing Party and is not generally known, where the release of that Confidential Information could reasonably be expected to cause harm to the disclosing Party. All written and oral information and materials disclosed or provided by the either Party is Confidential Information regardless of whether it was provided before, during or after the date of this Agreement and regardless of form (oral, written or electronic communication) or method by which it was provided to the other Party.
Each Party agrees to use the other Party’s Confidential Information solely for the purposes contemplated by this Agreement and to refrain from disclosing the other Party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided that the receiving Party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing Party.
Each Party has an obligation to apply the same degree of reasonable care and diligence to protect the other Party’s Confidential Information, as it applies to its own confidential information. The confidentiality obligation will survive indefinitely upon termination of this Agreement.
Either party may terminate this Agreement at any time with 30 day written notice. Termination shall not relieve Client of the obligation to pay in full the project fees and expenses, at the time of termination. All monies due and owing as set forth in this Agreement including sums owed for change orders, new SOWs, expenses and third party costs incurred by Company through the effective date of termination are due on or before the date of termination. All installments due over time shall be accelerated to the effective date of termination. Full payment is required on or before the termination date. Company shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, reasonable attorney fees.
Client agrees to immediately discontinue use of the services and products on or before the termination date. Client acknowledges that Company has the right to shut down the website and any and all digital services created by Company, in the event of nonpayment, regardless of the reason for nonpayment of any installments, fees and expenses.
At Company’s election, Client’s delay of work under this Agreement for a cumulative period of more than 30 days without Company’s consent may be considered a termination of this Agreement.
If Client desires to terminate this Agreement based on the belief that the Company has failed to live up to this Agreement, Client shall give Company written notice detailing the nature of Company’s failure and possible remedies, whereupon Company shall have a reasonable period of time (but in no event less than 30 days) to cure such fault.
Breach of this Agreement means a breach of any of the material terms of this Agreement and any changes orders or other modifications, and includes a charge-backs, bankruptcy filing, and assignment for benefit of creditors.
In the event that Client (i) files a voluntary petition in bankruptcy, (ii) makes an assignment for the benefit of its creditors, or (iii) breaches any of the material terms of this Agreement, Client is obligated to pay the full price for contracted services.
Should Client breach of any of the material terms of this Agreement, Company will send a written notice to Client. Client has ten (10) days to remedy said breach. If the breach is not remedied within ten (10) days from receipt of written notice of such breach, Company may immediately shut down the website and any and all digital services provided to Client, at its sole discretion. Client by its breach shall have waived its right to recourse against Company.
20. Duty to notify.
All notice obligations under this Agreement shall be provided by Client to Company within one (1) business day of Client’s receipt or knowledge of a third party claim, demand, cause of action, debt or liability related to or affecting the Company services and products. Initial notice shall be made by telephone, followed by written notice as specified in Section 24(d). Client shall immediately notify Company of any bankruptcy filing and/ or assignment of any benefits of the Agreement to any creditors.
a. Client agrees to indemnify, defend, and hold harmless, the Company, its directors, officers, employees, attorneys, affiliates, representatives, and agents with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorney’s fees, arising out of or in connection with any claim made by any person in connection with the content of the marketing materials. The Client assumes soles responsibility for protection of its copyright, trademark or other right or interest in any illustration, copy, language and any other items used in the marketing materials.
b. Client agrees to indemnify, defend and hold harmless Company, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, demand, injury or damages (including reasonable attorneys’ fees) resulting from claims or actions arising out of or in connection with Client’s (i) breach of any of the foregoing representations and warranties, and any misrepresentations or other acts or omissions of Client (ii) any third party claim arising from use of or access to the Client’s marketing materials under this Agreement or any material to which users can link, or any products or services made available to users, through Client’s marketing materials and website under this Agreement, (iii) Client’s breach of any material terms of this Agreement, and (iv) any third party claim arising from use of or access to Client’s marketing materials which infringes upon any United States or international patent, copyright, trademark, trade secret, or other intellectual property right.
c. Client shall pay all claims, judgments and defense costs, including attorney fees, for itself and for Company and agrees to provide prompt written notice to Company of any such claim. Company retains the right to participate in any defense and/or hire its own representation at Client’s expense.
22. Mediation and Arbitration Clause
If a dispute arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be San Diego, California. The laws of the State of California shall govern the arbitration. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of their costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
23. Survival Provisions.
In the event of termination for any reason, Sections 2,4,5,10,13,15,17,18, 22, 23 and 24 of this Agreement, together with any payment obligations incurred prior to the effective date of termination shall survive termination of this Agreement regardless of whether one or both parties terminated this Agreement, or the Agreement is terminated by the terms of this Agreement and the SOW, any change orders or other modifications or additions.
24. General Terms.
a. Liability of Company. Company shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including delays and non-performance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Company or by Client. Company shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. Company shall not be liable for any mistake or error in judgment or for any act or omission done in good faith and within the scope of authority conferred or implied by this Agreement. Company’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.
b. Terms of Service Changes, Modifications and Amendments. Company reserves the right to change the Terms of Service (the “TOS”) at any time, and Client agrees to be bound by such changes. If and when changes are made to these TOS, an announcement will appear on your login page. Please make sure that you read and understand all such changes.
c. Independent Contractor. Company and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for services.
d. Notice. All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing and delivered to the Parties of this Agreement as follows:
- Client’s place of business, by mail, fax, or email as archived in Company files. Client is responsible to update Company when any of this information changes.
- Company’s place of business, by mail, fax, or email as shown on its website.
e. Time is of the essence. No extension or variation of this Agreement will operate as a waiver of this provision.
f. No Assignment. Neither Party will voluntarily or by operation of law assign or otherwise transfer its obligations under this Agreement without the prior written consent of the other Party.
g. Entire Agreement. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.
h. Titles and Headings. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
i. Governing Law; Jurisdiction. This Agreement shall be interpreted and construed in accordance with the laws of the State of California without regard to any conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in San Diego County, California for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any such action or proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees of its attorneys.
j. Severability. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
k. Waiver. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.