The Parties anticipate that the Company will provide services when requested by the Client. Services may include projects of limited duration or scope or may involve ongoing services, with the scope and pricing of such projects to be defined on a project-by-project basis in a Statement of Work (“SOW”) issued for each project. Accordingly, the Parties enter into this Master Services Agreement to define the rights, obligations, and responsibilities of each Party that are common to all services and projects. The Parties agree that all SOW’s issued are issued pursuant to the terms and conditions set forth in this Agreement, and that a SOW only has the power to set or alter the terms expressly designated as applicable to SOW’s in this Agreement. Nothing contained herein shall obligate any Party to guaranty any set level of services or work for the other, unless expressly agreed to in a SOW.

 

 

The Company provides graphic design and digital marketing services for the purpose of assisting the Client with marketing and marketing assets (“Services”). The Company does not provide compliance services, and the Client agrees to ensure that the marketing is consistent with the laws and regulations applicable the Client’s line of work. When the Client desires Services from the Company, the Client will request Services, and, if the Company is willing and able to perform the Services, it will issue a SOW to the Client. The Company is under no obligation to issue a SOW, and may decline a request from Client. Once a SOW is issued, if the Client agrees with the terms contained in the SOW, the Client will execute and return the SOW to the Company. The Company shall perform the Services in the manner specified in the SOW and have the final product or service (“Deliverable”) ready for Client no later than the due date specified in the applicable SOW or applicable Change Order, if any (“Completion Date”). In no event, however, shall the Deliverable include the accounts, know-how, software or back-end information created or utilized by the Company to perform its Services (“Company Proprietary Information”). Client shall assist the Company by promptly providing all information requests known or available and relevant to the Services in a timely manner. Client agrees that if Client does not timely provide such information, the Completion Date may be adjusted to reflect the delay caused by the Client.

 

 

The Agreement and SOW may set forth the following terms and conditions related to a project:

 

a) A description of the requested scope of work and the Services that the Company agrees to provide to the Client, along with a description of items or services that may be excluded from the project (“Project Services”);

 

b) Information required from the Client. However, even if the Client provides all information contained in the SOW, the Company may require or request additional information throughout the Project Services, and the Client agrees to timely provide all such information requested, whether or not listed in the SOW;

 

c) A description of the project type, whether it is a “Limited Project” that ends on a date certain or a “Recurring Project” that continues until terminated by the Client;

 

i. If it is a Recurring Project, the SOW may also set forth the termination procedures for the Recurring Project. If the SOW is silent on termination procedures, then the Client shall give the Company at least 15 days’ notice to terminate the Recurring Project;

 

d) Project start and end dates, as applicable;

 

e) The fees and compensation Client owes to the Company for the Project Services (“Project Price”). The Project Price may be designated as an “estimate” by the Company, and if it is so designated, the Client agrees to pay the full Project Price once the Client receives the invoice detailing the full Project Price;

 

f) The deposit, if any, that is required to begin the Project Services (“Deposit”);

 

g) The payment terms applicable to the Project Services (“Payment Terms”). If a SOW is silent on Payment Terms, then the Parties agree that, for Limited Projects, full payment of the Contract Price is due net 15 days after the invoice is received by the Client, and for Recurring Projects, the amount invoiced by the Company is due net 3 days after the invoice is received by the Client.

h) The types and formats of the Deliverables. If a SOW is silent on these terms, then the Deliverable shall be furnished to the Client within 72 hours of final payment for the Project Services, and shall be in electronic or other format most commonly used by the Company for that type of Project Service.

i) Anticipated travel and associated expenses. The Client agrees that if travel needs arise throughout the course of any Project Services, the Company may update the SOW to reflect such needs, and the Client will reimburse the Company accordingly, even if such travel was not originally listed in the SOW.

j) Pause. Pause refers to a period of time in which the Company shall perform no service or work for Client and Client shall not be charged. This period shall be temporary and be limited in time as outlined in section 10 herein. This period shall suspend the Term of this Agreement and the Term shall renew after the Pause period has ended.

k) Buy-Out. Client may Buy-Out the contract for 50% of its remaining value. Upon Company receiving this payment, this Agreement will terminate. Company may move this Agreement into Buy-Out if Client fails to pay three consecutive monthly payments on time or at the end of a Pause period as defined and discussed herein.

l) Work Product. Work Products are digital and physical assets created by The Company on behalf of the Client. These include, but are not limited to, videos, brochure designs, various graphically and digitally designed images, advertisements, e-mail designs, web designs, and logos.

 

The items designated in this Section 3 will control for each project if they are set forth in a SOW for that project. The Parties agree that the SOW may not modify or amend any terms or conditions of this Agreement not set forth in this Section 3, and that if there is reason or cause to need to amend the terms or conditions of this Agreement for a particular project, the Parties must execute a written Agreement in accordance with the “Amendment to Agreement” Section below. For any terms not identified in this Section as applicable to a SOW, the terms of this Agreement will take precedence over any conflicting terms in a SOW.

 

The Parties agree that the Company is not obligated to provide or perform any Services in the event of a force majeure event, including, but not limited to, power outages, internet service disruptions, acts of God (earthquake, flood, fire, explosion, tornado, etc.), material change in governing law, riots, strikes, war, or acts or threats of terrorism.

 

 

If the Client requests any changes to the scope of the work on the project, any additional costs due to adjustments will need to be quoted separately. If the Client desires to initiate changes to the SOW, it shall submit to Company a written request to do so. The request will set forth the nature of the Client’s proposed changes to the SOW. The Company, if it agrees to perform on such requests, shall return a written document setting forth (i) a written description of the requested changes to the SOW, (ii) any changes to the schedule or Completion Date, (iii) any changes or additions to the Deliverables, (iv) any changes to other terms of the SOW and (v) any changes or additions to the Project Price (“Change Order”). A Change Order will be binding only if signed by both Parties or agreed to in writing by both parties. Any and all Change Orders will be governed by the terms and conditions set forth in this Agreement (whether or not labeled as a “Change Order”), and are hereby incorporated by this reference. Any items not addressed by a Change Order will be subject to the provisions of the SOW not changed by the Change Order and this Agreement. A Change Order cannot modify or amend the terms of this Agreement, and may only address the items included in the “Terms Contained in the Sow” Section above.

 

 

The Parties may execute multiple SOW’s concurrently. Client agrees that the Company is under no obligation to perform work on any SOW if the Client has not timely met its payment obligations in full under any other SOW, and the Company may suspend all Project Services for late payment on one SOW until payment is made in full for all work performed on all SOW’s. If the Company suspends Project Services due to non-payment by the Client, the Completion Date(s) in each SOW will be adjusted accordingly for the length of the period of non-payment. Receipt of payments from the Client by the Company shall not constitute a waiver of the Company’s rights or a release of liability of Client for any other SOW.

 

a) Reasonable Assurances. If the Client misses one or more of its payment obligations, the Company is authorized, at its discretion, to require that the Client pay for Project Services under all then existing or future SOW’s in advance of the Company performing or resuming any work for the Client. The Company may also request other reasonable assurances, such as, but not limited to, explanations for the late payment or proof of funds prior to beginning or resuming any work.

 

 

In exchange for Company’s Services under this Agreement, the Client shall pay Company each Project Price. The company will submit a final invoice to the Client for all services rendered by each applicable Completion Date or a monthly invoice for ongoing work, and the Client shall promptly pay the amount on the invoice pursuant to the applicable Payment Terms. Down payments, setup fees, and other initial payments will be due at signing. The Client agrees that it has no right or title to the Deliverable and is restricted from using any form of the Deliverable until final payment is received by the Company. Invoices are due on the date noted on each invoice. A 5% late fee will be assessed to all invoices that remain unpaid 30 days after the due date. Unpaid invoices accrue interest at the rate of one and a half percent (1.5%) per month thereafter. The company retains the right to suspend services when an invoice is unpaid 30 days after the due date.

 

In addition to the Project Price, the Client shall pay travel and other necessary expenses incurred by the Company in performing the Services. In the event of a good faith dispute with regard to an item appearing on an invoice, the Company shall have the right to withhold the Deliverable while the Parties work to resolve the dispute.

Both parties acknowledge that work outside of the defined SOW may at times benefit the Client. The Company, in seeking to be an invested partner in the Client’s success may offer this work and additional services. The Company reserves the right to invoice or otherwise charge hourly for these additional services, in addition to the monthly contracted Project Price, at a rate not to exceed $200 per hour. The Company may, of its own volition, waive these charges.

 

The client agrees to pay all attorneys’ fees, court costs, filing fees, including charges or commissions up to 40% percent that may be assessed to us by Mountain Land Collections Inc., or any other collection service, who has been retained to pursue this matter. Unpaid invoices will be turned over to a collection agency when they become 60 days delinquent or at a later time determined by the Company. If the Client’s account is referred to a collection agency, the Client consents to receive cellular telephone calls from an automated telephone dialing system as defined by the Consumer Protection Act of 1991(and as amended), 47 U.S.C. § 227. The Client also consents to the use of E-mail, text messaging, and voice mail drop channels of communication used by the collection agency.

 

 

The Company shall have the right to modify, reject, or terminate any SOW and any related work in process with five days written notice to the Client. In the event Company terminates the SOW prior to completion of the Project Services, the Client shall pay Company the fees due under the SOW with respect to any Services completed as of the date of termination. Upon settlement of funds due to Company, all Client provided materials will be returned to Client and all Client use rights owed under this Agreement in the work in process will be transferred to Client.

 

 

The representations and warranties of the Company are limited to the items contained in this Agreement, and the Company expressly disclaims all other representations and warranties not expressly provided for in this Agreement. The Company represents that any materials used in the Deliverable will not (a) knowingly infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) knowingly violate any law, statute, ordinance or regulation. Notwithstanding this, the Company expressly disclaims any representation or warranty that the Deliverables or Project Services are in compliance with all laws, statutes, ordinances, or regulations as it services clients in many industries, and the Company is not providing any legal or regulatory compliance services to the Client.

 

The Client represents that any Project Services requested and any materials provided to the Company for incorporation into the Deliverable will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation. The Client agrees to indemnify and hold the Company harmless against all Claims that may arise for any violation of this Section.

 

Both Parties represent that the individual signing this Agreement is an authorized representative of each Party with full authority to sign and bind each Party to this Agreement.

 

Both Parties acknowledge that any SOW may include engaging with large technology companies (eg Facebook). Parties acknowledge that these technology companies may, at any time, change or enact policies that may impact marketing efforts by the Company on behalf of the Client. These changes may have varying effects including, but not limited to, ad accounts being disabled, ads being shut off, and reporting difficulties. The Client acknowledges that the Company is not responsible for these effects and that these complications do not, in any way, impact this agreement. The Company represents that should any of these issues arise it will take best-practice steps to attempt to alleviate negative effects.

Client acknowledges and agrees that Client’s timely response to Company’s requests for feedback will have significant impact on the schedule set forth in the Proposal and the quality of the Work.

 

EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY IS NOT PROVIDING PRIVACY OR DATA PROTECTION SERVICES OR COMPLIANCE FOR THE CLIENT.

 

 

To the fullest extent permitted by law, Company retains ownership and access rights in all Company Proprietary Information. Further, Company retains all ownership and Intellectual Property Rights to the raw video footage, music, images, and other components comprising the Deliverable for its future use. Upon full payment for the Deliverable, Company grants Client ownership of the Deliverable. Client shall retain sole ownership of all Intellectual Property Rights in connection with any original material it provides to Company for use within the Deliverable. The Company shall retain sole ownership and license rights in the Company Proprietary Information, and Client does not receive a license or other right to any of the Company Proprietary Information under this Agreement or access rights to any account created by the Company, such as, but not limited to, a Google Ads account. If termination of this Agreement or an applicable SOW occurs for any reason, Company shall perpetually retain ownership in all Intellectual Property Rights and to the raw video footage, music, images, and other components comprising the work in process up to the date of termination. After a termination by the Company of a particular SOW and upon full payment for the work in process, Company will grant Client ownership of the work in process. In no event will Company be liable for any claims related to or arising from Client’s improper use of the Deliverable, work in process, or the music, images, and other components that comprise the Deliverable or work in process. In no event will the Company be responsible for Client’s use of or compliance associated with the Deliverable.

The Client retains all ownership to their brand, logos, images, etc. but expressly consents that The Company may use The Client’s logos in ways consistent with The Client brand. This consent includes us of name and logo without notice in connection with certain promotional materials that The Client may disseminate to the public. The promotional materials include but are not limited to brochures, videos, and websites.

 

At times, The Company may require the approval of Work Products. In the case of Work Products directly relating to web development, The Client shall have 14 days to either approve of the Work Product or disapprove with feedback for revision. If, after this 14-day period, The Company has not received approval or feedback, Work Product will be assumed to be approved and The Company will move forward in its use. If, after this period, The Client requests revisions, revisions may be made but The Company reserves the right to charge an additional hourly rate, not to exceed $200 per hour, for these revisions.

For non-web development Work Products – including but not limited to advertisement designs, videos, email designs, and other digitally designed materials. The Client will be given a timeline, never to be less than 2 business days, to approve or give feedback. If after this period no approval or feedback is received by The Company, The Company will move forward in its use. If, after this period, The Client requests revisions, revisions may be made but The Company reserves the right to charge an additional hourly rate, not to exceed $200 per hour, for these revisions.

 

 

The Client will defend, indemnify and hold the Company harmless from any and all claims, losses, liabilities, demands, damages, suits, expenses and costs (including attorneys’ fees and court costs) (“Claims”) arising from or relating to any issues regarding elements or materials provided by Client and incorporated into the Deliverable. Additionally, the Client agrees to defend, indemnify and hold Company harmless from any and all Claims arising from or relating to any issues regarding Client’s unauthorized use of any music, images, or other materials comprising the Deliverable and from any and all Claims related to Client’s non-compliance with laws applicable to Client’s business.

 

 

THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO COMPANY HEREUNDER.

 

 

If the Parties desire to amend this Agreement, they must do so in a writing signed by both Parties that specifically references this Agreement and this Section, and it must be titled in a manner substantially similar to “Amendment to Master Services Agreement”. The Parties may designate an amendment as the “First”, “Second”, and so forth amendment as applicable. An amendment must be in a writing separate and distinct from a SOW. Notwithstanding this Section, the Parties may update the Agreement as provided in Section 10 above.

 

 

The Client may not assign this Agreement without the prior written consent of the Company and any attempt to do so will be void. The Company may assign this Agreement with written consent of the Client or without the consent of the Client in the event the Company or its assets are purchased. Any notice or consent under this Agreement must be in writing and provided to the address specified below, or the most recent address providing in writing by either Party to the other Party. If any provision of this Agreement is adjudged by any court of competent jurisdiction or arbitrator to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective Parties, and no course of conduct between the Parties may be used to alter the terms of this Agreement. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, and that all SOW’s will be incorporated into and become a part of this Agreement. To the extent any online terms and conditions of the Company are inconsistent with this Agreement, the terms and conditions of this Agreement shall control. Both Parties agree that the Agreement is signed by an authorized company representative authorized to bind each company to its terms and services and no consent from any third party is required. This Agreement shall be deemed to be the joint work product of both Parties, and any rule of construction that a document shall be interpreted or construed against the drafter of such documents shall not be applicable to this Agreement.

 

 

This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of Utah and the United States without regard to conflicts of law provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in Salt Lake City, Utah, and each party irrevocably submits to the jurisdiction and venue of such courts.

 

 

The Company reserves all remedies available at law or equity for any disputes that arise under this Agreement and may seek a temporary restraining order, preliminary injunction, and/or permanent injunction in the event the Client is violating any of the Company’s intellectual property rights. In the event of a suit or proceeding under this Agreement, the non-prevailing Party agrees to pay all reasonable attorneys’ fees of the prevailing Party. A Party shall be considered to be a prevailing Party if a final injunction is entered in its favor, even if a temporary restraining order or preliminary injunction was not entered, or if an appellate or Supreme Court holds in its favor, even if lower courts did not.

 

 

Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between the Parties as each are independent contractors, and each will be solely responsible for their own employees, taxes, insurance, licenses, and other legal or business obligations.

 

 

Client shall not, directly or indirectly, solicit for employment, or advise or recommend to any other person that they solicit for employment, any employee of the Company (or any subsidiary or affiliate), during the Term and for a term of two years thereafter.

 

 

This Agreement may be executed in counterparts, with each counterpart constituting an original. The Parties may transmit or sign this Agreement electronically, and an electronic copy of this Agreement may be considered an original of this Agreement.

Accepted and agreed to as of the Effective Date by the authorized representative The Client

 

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