Client Services Terms & Conditions
THIS MASTER SERVICES AGREEMENT is by and between R3 Design, located at 211 S Main St. (collectively referred to as “Company” or “us”), and the client as identified as (“Client” or “you”). Client shall be responsible for promptly notifying Company of any additions or deletions to Schedule 2; provided, however, any additions shall be subject to the Company’s prior written credit approval. From time to time herein, Client and Company shall collectively be referred to as “Parties,” and shall individually be referred to as “Party.”
Client is retaining Company to provide services on a project or projects (each, a “Project”), which may include a number of IT services offered by Company (the “Services”) set forth in a statement of work (“Statement of Work” or “SOW”), each as may be issued by Client and accepted by Company from time to time; provided, however, Services shall not include third party branded services, software as a service (“SaaS”), or other cloud computing offerings. Before Company shall commence a Project, Client and Company shall sign a SOW for such Project, which shall specify, among other things, (i) the Services to be performed, (ii) the schedule of performance, (iii) any tangible or intangible products or by products (collectively, the “Deliverables”), (iv) fees and payment terms, and (v) other particulars that relate to the SOW. In addition, as part of the SOW, a detailed project plan or requirements document may be prepared and revised by Company and Client as necessary to track completion of the Deliverables.
Scope of Projects. The scope of any Project may be altered, modified, expanded, or changed (“Changes”) by amending the related SOW in a writing signed by both of the Parties. Client acknowledges, understands, and agrees that certain Changes may require additional time and materials thereby increasing the total cost.
Acceptance of Deliverables
Unless otherwise agreed to in a SOW, if a Service or Deliverable does not substantially conform to its description in a SOW upon Company’s delivery of an invoice to Client, Client shall provide written notice to Company specifying the material nonconformity no later than ten (10) business days following the date of such invoice. Client’s acceptance shall be deemed to have occurred upon the earlier of the following: (i) expiration of the ten (10) business day review period; or (ii) upon Client’s written notification of acceptance to Company. If the Client does not accept the Service or Deliverable, the Client will provide Company a written description of the problems and Company shall have a reasonable period of time (not to exceed ten (10) business days unless otherwise agreed to by the Parties) to remedy the deficiencies or to present a plan to remedy the deficiency which is reasonably acceptable to Client.
Client agrees (i) to provide Company with specific instruction, information, and/or other software or products to Company as necessary to allow Company to fulfill Company obligations set forth in a SOW; (ii) to fulfill its obligations described herein and in each SOW; and (iii) to cooperate with Company as reasonably necessary for Company to perform the Services set forth herein, and failure to fulfill such obligations may result in a Client delay (“Client Delay”). Company is not responsible for any Client Delay caused by Client’s failure to provide accurate instructions, information, access to facilities, or suitable software, products, or application environment. Any Client Delay may cause (a) additional time for completion of the Services, (b) additional cost to complete the Services, or (c) termination of the SOW by Company. Termination of a SOW pursuant to this Section 4 does not relieve Client of its payment obligations for Services provided through and including the date of termination.
Pricing, Expenses, Invoices, Payment, Late Fees, and Taxes.
a) Pricing for Services shall be mutually agreed upon in writing and set forth in a SOW. All prices are exclusive of taxes, duties, shipping, and handling charges. Company reserves the right to require an initial deposit or retainer from Client and may apply any initial deposit or retainer to Client’s final invoice or any outstanding unpaid invoice and may require that Client provide a new deposit or retainer as security for Client’s future payment obligation.
b) Company shall be entitled to reimbursement from Client for documented travel and lodging expenses that are reasonably incurred and necessary for Company to perform the Services. All expenses for reimbursement will be subject to Client’s prior written approval.
c) Unless otherwise specified in a SOW, Services will be invoiced on the date Company’s performance of Services is completed pursuant to the applicable SOW. Unless credit is extended to Client by the Company in accordance with Section 5(d) below, Client shall pay Company within thirty (30) calendar days from the date of such invoice (“Invoice”) for any of the Services, Deliverables, and expenses provided or incurred pursuant to this Agreement or any SOW (“Fees”) and shall reference the invoice number in any such payment. Company will not release any Project artifacts to Client until the Project balance is paid in full.
d) If Client informs Company within ten (10) calendar days of the date of the Invoice that Client cannot pay the Fees set forth in such Invoice as provided in Section 5(c), Company may, in its absolute and sole discretion, extend a credit to the Client in an amount equal to the Fees set forth in such Invoice (“Credit”), provided Client has provided Company with all financial information reasonably requested by Company. Client shall repay the Credit according to the terms and conditions set forth in a writing signed by Client and Company. For the avoidance of doubt, Company retains the right to decline or extend any credit to Client and to require the applicable Fees to be paid in accordance with Section 5(c).
(e) Company may charge Client interest and late fees on any overdue and unpaid portion of the Fees in an amount of one and one-half percent (1.5%) per month compounded monthly, or the maximum amount permitted by law. Any disputes regarding an invoice shall be made by Client in writing delivered to Company.
(f) Federal, state and local sales, use and excise taxes and all similar taxes and duties (excluded taxes based on Company’s income, assets, or net worth), are the sole responsibility of Client.
Term and Termination
(a) Subject to the termination rights specified in this Agreement, this Agreement shall become effective as of the Effective Date and continue until terminated hereunder. Either Party may terminate this Agreement with no less than five (5) calendar days’ prior written notice in the event there are no Statements of Work in effect.
(b) Unless otherwise specified in a Statement of Work, the term of each Statement of Work shall commence on the date such Statement of Work is fully executed by both Parties and shall continue for a period of one year (“Initial Term”). The Initial Term of each Statement of Work will renew automatically for additional terms equal in length to the Initial Term (each a “Renewal Term”) unless (i) otherwise terminated in accordance with this Section 6; or (ii) either Party notifies the other in writing not less than thirty (30) calendar days prior to the end of the Initial Term (or any subsequent Renewal Term, as applicable), that it wishes to terminate such Service.
(c) In order to effectively manage its resources to provide the Services to Client, Company requires that Client shall provide sixty (60) calendar days’ written notice prior to terminating a SOW. In the event of Client’s termination under this Section 6(c): (i) any unapplied initial deposit or retainer from Client for the applicable Project shall be applied to outstanding unpaid invoices, if any; (ii) Client shall pay Company for Services provided up to the date of termination of the SOW; and (iii) Client shall pay a termination fee (the “Termination Fee”) as provided in the SOW. Termination of a single SOW shall not have the effect of terminating any other Statements of Work or this Agreement.
(d) Company may terminate this Agreement without cause upon sixty (60) calendar days’ prior written notice to Client.
(e) If a Party materially breaches any material provision of this Agreement or a SOW and fails to remedy such breach within thirty (30) calendar days of receipt of written notice from the non-breaching Party, the non-breaching party may terminate this Agreement and/or the applicable SOW adversely affected by such breach. Notwithstanding the foregoing Company may suspend performance under a SOW due to Client’s failure to make any payment set forth therein upon ten (10) calendar days prior written notice by Company to Client. Either Party may terminate this Agreement and any Statements of Work then in effect upon written notice to the other Party in the event the other Party discontinues its business, files a petition for chapter 7 bankruptcy, or becomes insolvent or makes an assignment for the benefit of creditors.
(f) In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement, including, but not limited to any payment obligation accrued by Client hereunder.
Work Product and Inventions. Except as set forth below, and upon full payment under such SOW, all Deliverables created for Client by Company (the “Work Product”) shall be considered “work made for hire” with all right, title and interest to such Work Product vesting in Client. Client shall have the right to use the Work Product or any part or parts thereof as it sees fit. Work Product shall not include Company’s preexisting proprietary information and methodologies for delivery of the services set forth herein, document templates or project tools used by Company to deliver the Services, and Company-owned materials in the Work Product (collectively, “Company Intellectual Property”). Nothing herein shall be interpreted to prevent Company from performing similar services for any other Company client. Unless otherwise set forth in a SOW, in the event any Company Intellectual Property is required to use the Work Product or receive benefit from the Services, Company hereby grants to Client a nonexclusive, royalty-free, limited license to use, execute, reproduce, display, perform, and distribute copies of the Company Intellectual Property solely for its internal business purposes.
Use of Trademarks
The Parties agree and understand that Client hereby grants to Company, a limited right to use any and all trademarks of Client in order to perform Services pursuant to this Agreement. Company acknowledges that such trademarks remain the proprietary property of Client and Company shall have no right to use any such trademark outside the scope of this Agreement.
(a) Company warrants that all Services provided hereunder shall be performed in a professional and workmanlike manner. Unless otherwise set forth in a SOW, a Deliverable shall be warranted to operate in accordance with the specifications set forth in the SOW or requirements document for thirty (30) calendar days following such Deliverable’s acceptance as set forth above (the “Warranty Period”). Client’s sole remedy for a breach of warranty set forth herein shall be for Company to re-perform the Services or to correct such defects using reasonable efforts in a timely manner.
(b) The limited warranty set forth in this Section 9 or in any SOW shall not extend to (i) Client’s use of the Deliverable in violation of the terms of this Agreement; (ii) Client’s failure to follow Company’s installation, operation or maintenance instructions; (iii) Client’s failure to permit Company access, remote or otherwise, to the Deliverable(s) or Client’s facilities as required for Company to perform its duties hereunder; (iv) failure to implement all new updates or substitutions to the Deliverables or services which are provided under the Agreement; (v) Deliverables that have been serviced or modified by a third party other than Company.
(c) Except as specifically set forth in this section 9, all deliverables and services are provided “as is” with no warranties or indemnities of any kind and neither company nor its licensors or suppliers, if any, make any express representations or warranties with regard to any products or services or otherwise related to the agreement. company does not warrant uninterrupted or error free operation of deliverables or services. To the maximum extent permitted by applicable law, company disclaims all warranties implied or statutory, including but not limited to, any warranties of merchantability, fitness for a particular purpose and non infringement. the warranty remedies expressly provided in the specifications will be client’s sole and exclusive remedies.
Limitation of Liability; Monetary Cap
(a) In no event shall company be liable under any theory of tort, contract, strict liability or other legal or equitable theory for exemplary, punitive, special, incidental, indirect, or consequential damages, or for any loss of profits, revenue, or data, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether company had been advised of the possibility of such damages. In no event shall company aggregate liability to client or any third party for any claims, losses, injuries, suits, demands, judgments, liabilities, costs, expenses or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this agreement) and regardless of the form of action or legal theory, exceed the project fees paid in the prior three (3) months by client to company under the statement of work that gave rise to such claim. The limitations of liability reflect the allocation of risk between the parties. The limitations specified in this section 10 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
(b) The exclusions and limitations of liability set forth in Section 10(a) shall not apply to (i) payments of amounts due to the Company or (ii) either Party’s indemnity obligations under Section 17. In addition, no action regardless of form, arising out of the transactions under this Agreement, may be brought by either Party more than one year after the damage, loss, or expense occurred.
Nature of Services
The Parties are and shall be independent contractors to one another. This Agreement does not and is not intended to create an agency, joint venture, or partnership between the Parties. Neither Party may make any commitments for or create any obligations on behalf of the other Party without that Party’s prior written consent. Company has sole responsibility for the direction of its employees and contractors and has the right to fire, hire, suspend, layoff, transfer, or reassign employees and contractors at will without the consent of Client.
Solicitation of Personnel
During the term of this Agreement and for a period of one (1) year following termination or expiration thereof, both the Client and Company mutually agree not to, directly or indirectly, solicit for hiring, hire or accept any services or work from each other’s employees, personnel or contractors who are associated with the performance of Services hereunder.
Jurisdiction and Venue; Choice of Law
This Agreement and all disputes arising under or related to it shall be governed by the laws of the state of organization of the defending Party, without regard to choice of law principles that would allow the application of another state. The Parties agree that, in the event either party initiates any action or proceeding relating to this Agreement in a court, such action or proceeding shall be filed in the state of organization of the defending Party, and the Parties will submit to the jurisdiction of that court with respect to such action or proceeding.
Client, only upon prior signed approval, agrees to cooperate with Company and its agents in the creation of a press release on or immediately after the Effective Date, announcing the selection of Company’ services by Client. Company may identify Client as a Company client, and use Client’s logos, in connection with publicized Client lists, advertising and other promotional and marketing materials.
Client may not assign or transfer this Agreement or any of its obligations hereunder without prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. Any assignment or assumption without Company’ prior written consent shall be null and void.
All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given when delivered via email.
Client agrees to defend, to indemnify, and to hold harmless Company from any third-party liability including, but not limited to, damages, costs, interest, and reasonable attorneys’ fees, arising from any Client’s violation of law, or violation of any copyright, patent, trademarks or other intellectual property rights owned by third-parties, negligence or intentional act, omission, or breach of contract of Client, its agents or employees. Company agrees to defend, to indemnify, and to hold harmless Client from any third-party liability including, but not limited to, damages, costs, interest, and reasonable attorneys’ fees, arising from any Company violation of law, negligent or intentional act, violation of the intellectual property rights of third parties, or omission of Company, its agents, contractors or employees, except that Company shall not be liable for any third-party claims that arise out of Company performance of any SOW pursuant to instructions provided by Client. Client represents and warrants that it has all necessary rights, title, and interest in and to all content, artwork, and designs which are provided to Company hereunder or under any SOW.
Each Party will carry adequate insurance coverage to provide:
(a) General Liability Insurance. Commercial general liability insurance with limits not less than $1,000,000 each occurrence for bodily injury or property damage and $2,000,000 in the aggregate.
(b) Workers Compensation Insurance. Workers Compensation Insurance as required under applicable state law, including Employer’s Liability with limits not less than $1,000,000 each accident.
This Agreement, together with any Schedule, Addenda or Exhibit, and all executed Statements of Work, together with any Schedule, Addenda or Exhibit, including any requirements or documents that provide technical details regarding Company Deliverables and/or performance constitute the complete integrated agreement between the Parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety. In the event of a conflict between the terms of this Agreement and Statements of Work the order of precedence (with the first being the controlling) shall be as follows: (i) Statements of Work (the most recent SOW having higher precedence, and so forth) and (ii) this Agreement.
Except as set forth in Section 2, no alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement, an SOW or requirements or deliverables document(s) shall be valid and binding on either Party unless mutually assented to in writing by authorized representatives of both Parties.
No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.
If any provision of this Agreement is adjudged by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the Parties, and that this Agreement shall in any event otherwise remain valid and enforceable.
The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
No delay in or failure of performance by either Party under this Agreement will be considered a breach to the extent caused by the occurrence of any event beyond its reasonable control, including, but not limited to, Acts of God, power outages, governmental restrictions, strike, catastrophe or unusual internet delays, outages, or congestion, denial of service attacks, and other “hacker” activity. In witness whereof, the Parties have executed this Master Services Agreement on the Effective Date.