This Master Services Agreement (“Agreement”), is made between Figmints Delicious Design & Creative Marketing LLC, a Rhode Island limited liability company with its principal place of business at 163 Exchange St., Suite 101, Pawtucket, RI 02860 (“Company”) and COMPANY, or its assigns (“Client” of acceptee of estimate). The general terms and conditions associated with this Agreement (the “Terms and Conditions”) in the form [attached hereto as Exhibit A / available at http://www.figmints.com/terms-and-conditions/], as the same may be amended from time to time, are incorporated herein by reference. Any capitalized term not otherwise defined herein shall have the respective meaning associated with it in the Terms and Conditions.RECITALSWHEREAS, Company is in the business of marketing, branding, video production, web development, mobile development, and product placement.WHEREAS, Client desires to engage Company to provide marketing, branding, video production, web development, mobile development, or product placement services, and Company agrees to perform such services, on the terms and conditions set forth herein.WHEREAS, Company and Client agree that this Agreement, as may be amended from time to time, shall apply to all such future services.AGREEMENTTHEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Company agrees to perform services (the “Services”) for Client as described in one or more Statements of Work, the form of which are attached hereto as exhibits, delivered by Client and accepted by Company, as the same may from time to time be amended. Company shall update each Statement of Work on a regular basis to provide for and reflect (a) Services rendered, (b) modifications to the Services (or any goals or milestones associated with the Services) accepted by Company, and (c) any modifications to the budget (in terms of required Sprints to complete the Services). Client shall provide Company with any objections to a revised Statement of Work within five (5) business days of Company’s provision of the same, and will otherwise be deemed to have accepted the revised Statement of Work. Any conflict or inconsistency between the provisions of this Agreement and the then applicable Statement of Work shall be resolved by giving precedence to the Statement of Work under which the Services are to be performed and then to this Agreement. Any timing for Deliverables (as defined in the Terms and Conditions) relating to the Services provided in a Statement of Work is provided purely for illustration purposes, and such timing shall be subject to change depending on the facts and circumstances relating to the Services and the Statement of Work.
Client shall assist Company in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in this Section 2 and in the applicable Statement of Work at its own expense. Client shall make available to Company a designated representative: FIRST/LAST NAME (“Client’s Representative” – of acceptee of estimate), who shall be authorized to make binding decisions for Client regarding the obligations which are the subject of this Agreement, and shall perform other duties and requirements of Client as set forth in this Agreement or in an applicable Statement of Work.
Intellectual Property Definitions
Client’s Business shall mean [Client’s business].
Client shall pay Company, on a monthly basis in advance, for the number of Sprints allocated to such month for the provision of the Services. Company shall not be required to provide Services relating to any Sprints not previously paid by Client, and reserves the right to suspend Services at any time period during which Client has failed to pay for the Sprints allocated to such Services. Company may unilaterally revise any Statement of Work as it relates to Services remaining to be rendered and specific lead times for the same, to the extent that Client has failed to pay for the applicable Sprints.
In addition, on a monthly basis in arrears, Client shall reimburse Company for all materials and reasonable out-of-pocket fees and Expenses incurred in connection with the performance of its obligations under this Agreement (“Expenses”). Company shall obtain Client’s prior written approval for any single out-of-pocket Expense which is anticipated to exceed $1,000, or any aggregated out-of-pocket Expenses which are anticipated to exceed $5,000.
In the event that the Company shall provide Services despite failure of Client to pay, in advance, for Sprints pursuant to Section 4.1, or Client shall fail to pay for Expenses within thirty days of invoice, such late payments shall be subject to a late payment fee equal to the lesser of 1.5% per month and such amount as may be charged pursuant to applicable law.
Term and Termination
Continuation. Unless earlier terminated pursuant to this Section 5, this Agreement shall continue for a period of one (1) year, and shall automatically renew for additional one (1) year periods unless either party grants notice to the other of its intention not to renew at least thirty (30) days prior to the end of the then current term.
Termination for Convenience. Subject to Section 5.4, either party may terminate this Agreement or any Statement of Work upon sixty (60) days written notice to the other party.
Termination of any Hosting Services.In the event that the Services are comprised, in whole or in part, of any web hosting (“Web Hosting Services”), Company retains the right to discontinue such Web Hosting Services at any time to the extent the Company (a) determines, in its reasonable discretion, that continuation of the Web Hosting Services would be damaging to the reputation or current or future business prospects of the Company, and (b) refunds Client for any time period(s) for which Client prepaid and during which the Web Hosting Services are not provided. Company shall endeavor to provide Client with sufficient notice, prior to terminating the Web Hosting Services, to obtain an alternate web host provider, but shall have no liability for failing to provide such notice.
Breach. If a party fails to comply with any material term of this Agreement, the non-breaching party shall notify the other party of such failure, and if the breaching party fails to cure such breach within five (5) business days, the non-breaching party may immediately terminate this Agreement or any Statement of Work. Notwithstanding the foregoing, the Company shall not be obligated to provide Client with notice and an opportunity to cure a payment default more than once in any twelve (12) month period, and in the event of multiple payment defaults in any twelve (12) month period, may immediately terminate this Agreement or any Statement of Work.
Upon termination of this Agreement for any reason: (a) Client shall immediately pay to Company all amounts owed to Company pursuant to Section 4 for any unpaid Sprints relating to Services performed and Expenses incurred prior to the date of termination; (b) each party shall immediately cease all use of and shall return to the other party within five (5) business days all Confidential Information, as defined in the Terms and Conditions, and materials of such other party and all copies, portions and abstracts thereof, that are in its possession or under its control, other than any materials for which Client has paid or agrees to pay. Company shall deliver to Client only such portion of the Deliverables that are complete, to the extent Client has paid the Sprints relating thereto.
Upon early termination of the Agreement or any Statement of Work (i) by Client pursuant to Section 5.2 or (ii) by Company pursuant to Section 5.3, in addition to any further damages at law or in equity and payment for any Sprints relating to Services rendered, Client shall immediately pay to Company a termination fee equal to ten percent (10%) of the fees relating to the remaining, unutilized and unpaid Sprints designated in the applicable Statement of Work to complete the Services (the “Termination Fee”). As an example, if the Statement of Work provides for 10 Sprints to complete the Services and the Agreement is terminated in a manner to trigger this Section 5.4.2 after payment for 4 Sprints, the Termination Fee shall equal the Fees associated with 0.6 Sprints (10-4 Sprints = 6 Sprints * 10% = 0.6 Sprints). Client acknowledges that damages to Company for early termination are difficult, if not impossible to ascertain, and that the Termination Fee shall be deemed liquidated damages for such early termination.
All notices required shall be in writing and shall be effective on the date of mailing to the parties at the addresses previously indicated, to the attention of the signers of this Agreement, or to such other address as designated by the parties in writing, and sent via registered U.S. mail, or by a mutually recognized overnight delivery service.
Client may not assign its rights and/or obligations under this Agreement without the prior written consent of Company. This Agreement is a legally binding contract on the part of Client and Company and their respective heirs, representatives, successors and assigns.
Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable.
The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
Neither party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, other than payment obligations, where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, delays caused by the other party, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.
Section headings are for the convenience of the parties and should not be construed as part of this Agreement.
Any controversy or claim between the parties shall be settled first by negotiation between the Client’s Representative and the Company’s project manager. In the event the parties are unable to resolve the dispute in a reasonable period of time, the parties agree to elevate the dispute to their respective Presidents, Managers, or equivalent officers. If, after a reasonable period of time, the parties are still unable to resolve the dispute, the parties agree to resolve the dispute in accordance with Section 6.8.
This Agreement shall in all events and for all purposes be governed by, and construed in accordance with, the laws of the State of Rhode Island without regard to any choice of law principle that would dictate the application of the laws of another jurisdiction. Any claim or dispute arising from or related to this agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker® Ministries (complete text of the Rules is available here. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties understand that these methods shall be the sole remedy for any controversy or claim arising out of this agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, ANY RELATED AGREEMENTS OR DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
The provisions of Sections 4, 5 and 6 and Sections 2, 3, and 4 of the Terms and Conditions shall survive the expiration or termination of this Agreement. All other provisions of this Agreement, including any Exhibits and Statements of Work hereto which by their terms or import are intended to survive such expiration or termination, shall survive.
This Agreement, together with the Terms and Conditions and the most recent Statement of Work, supersedes all prior oral or written representations, communications, or agreements between the parties, and, together with any appendices, constitutes the final and entire understanding of the parties regarding the subject matter of this Agreement. Neither party has relied on any such prior oral or written representations, communications, or agreements.
This Agreement may be executed (including by facsimile or Internet-based service) by one or more of the parties on any number of separate counterparts. All of such counterparts taken together shall be deemed to constitute one and the same instrument, and (if by facsimile) each such facsimile shall have the same force and effect as if an original.