Master Service Agreement
THIS MASTER SERVICES AGREEMENT (“Agreement”) is effective as of the signing date of the Statement of Work (SOW) by and between you (“Client”) as the party executing the Statement of Work and Elite Testimonial. Client and Elite Testimonial may each be referred to as a “party” and may collectively be referred to as the “parties”.
WHEREAS, Elite Testimonial is in the business, of amongst other things, professional content development and creative services;
WHEREAS, Client wishes to engage Elite Testimonial and Elite Testimonial wishes to provide agreed upon services to Client;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, Client and Elite Testimonial agree as follows:
- Scope of Work/Description of Services. Elite Testimonial shall provide Client with creative content production and related creative services (“Services”) described in an applicable statement of work, (“Statement of Work”). To be effective, a Statement of Work must be signed by the parties hereto. Notwithstanding anything to the contrary, any conflict or discrepancy between the terms of this Agreement and any Statement of Work shall be resolved in favor of this Agreement, unless the Statement of Work references and overrides a specific provision of this Agreement.
- Compensation. The fees and expenses for the Services performed by Elite Testimonial shall be set forth in each Statement of Work. Unless otherwise set forth in an applicable Statement of Work, all fees and billed expenses are due within thirty (30) days. If Client fails to pay any undisputed invoice within such thirty (30) day period, such unpaid amounts shall be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection, including, but not limited to, Elite Testimonial’s reasonable attorneys’ fees and expenses.
3. Terms and Termination.
3.1 This Agreement shall become effective on the date of the first signed Statement of Work (“Effective Date”) and shall continue in effect for a period of one year (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one-year periods (each a “Successive Term”) unless: (i) either party elects not to renew this Agreement by giving the other party thirty (30) days’ written notice of its intent not to renew this Agreement, or (ii) the Agreement is termination by either party in accordance with the terms herein.
3.2 After the Initial Term, either party may terminate this Agreement at any time by giving thirty (30) days prior written notice to the other party. However, if Services being performed by Elite Testimonial pursuant to a Statement of Work are in progress, the Agreement shall remain in full force and effect until the Services are completed or the Statement of Work is terminated.
3.3 In the event of a Default (as defined below), the non-defaulting party may issue a default notice to the defaulting party, and if the defaulting party does not cure the Default within fifteen (15) days of the notice, this Agreement may be terminated by the non-defaulting party by providing the defaulting party with notice. Termination of this Agreement shall not relieve the parties of any obligation accruing with respect to this Agreement prior to such termination or any obligation that is intended to survive after the termination or expiration of this Agreement. The term “Default” shall mean any of the following:
3.3.1 failure by a party to comply with or to perform any material provision or condition of this Agreement for fifteen (15) days after written notice thereof to such party; provided, however, if in the exercise of due diligence, a breach shall require more than the fifteen (15) days to cure, a party shall not be default hereunder if it shall commence the cure within fifteen (15) days and shall proceed to complete the cure with due diligence; or
3.3.2 a party becomes insolvent, is unable to pay its debts as they mature or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of creditors; or is named in, or its property is subject to, a suit for appointment of a receiver; or is dissolved or liquidated; or
3.3.3 a breach of any representation, warranty or covenant contained herein; or
3.3.4 in the case of Client, a failure to pay Elite Testimonial for any undisputed amounts due within fifteen (15) days of receiving notice that such balance remains due and outstanding.
3.4 In the event of a Default, whether or not this Agreement has been terminated as provided herein, the non-defaulting party shall be entitled to pursue any remedy provided in law or equity. Each party agrees that in addition to, and without limiting any other remedy or right the other may have, a non-defaulting party shall have the right to seek an injunction or restraining order, without the necessity of posting a bond or similar undertaking.
4. Representations. Client warrants and represents that: (a) it has and will have full power and authority to enter into this Agreement and any applicable SOW; (b) the execution and delivery of this Agreement and the performance of Client’s obligations hereunder: (i) is not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality, or court having jurisdiction over such party; and (iii) is, and shall be, in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, industry standards, and all binding orders of any court, agency or other governmental body with appropriate authority. Client further warrants and represents that it has duly obtained and will continue to maintain during the term of this Agreement, any and all licenses, permits, and authorizations necessary or required by Federal, state or local laws, rules, regulations, and/or ordinances covering Client’s activities pursuant to this Agreement and any agreed upon Statement of Work. To the extent that Client includes any content, any third party materials, including, but not limited to, written works, photography, music, use and likeness, sound recording, video recordings, or any other content that requires licenses and/or approvals, Client warrants and represents that Client has obtained all required licenses and approvals and shall be solely liable for any payment due therefrom. Elite Testimonial warrants and represents that: (a) it has and will have full power and authority to enter into this Agreement and any applicable SOW; (b) the execution and delivery of this Agreement and the performance of Elite Testimonial’s obligations hereunder: (i) is not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality, or court having jurisdiction over such party; and (iii) is, and shall be, in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, industry standards, and all binding orders of any court, agency or other governmental body with appropriate authority. If Elite Testimonial includes any content, any third party materials, including, but not limited to, written works, photography, music, use and likeness, sound recording, video recordings, or any other content that requires licenses and/or approvals, other than those provided by Client, Elite Testimonial warrants and represents that Elite Testimonial has obtained all required licenses and approvals required for inclusion in the Services.
5. Indemnification. Client shall indemnify, defend and hold, Elite Testimonial, and its parent companies, subsidiaries, affiliates, and their respective directors, officers, employees, agents, successors and assigns (“Indemnified Parties”) harmless from and against any and all liabilities, damages, injuries, claims, demands, suits, judgments, causes of action and expenses, (each a “Claim”, including, but not limited to, reasonable attorneys’ fees, court costs and out-of-pocket expenses, arising out of or related to: (i) any Claim made against an Indemnified Party for actual or alleged infringement of the intellectual property or proprietary rights of any third party; (ii) a breach by Client of any of its obligations, representations or warranties under this Agreement; (iii) any gross negligence, willful misconduct or fraud committed by Client in connection with the subject matter of this Agreement; and (vi) any labor and employment claim made against Elite Testimonial by a contractor or employee of Client. Client further agrees to defend, indemnify and hold Elite Testimonial harmless from any Claim brought by a third-party relating to any cause of action arising out of the use of Client’s products and/or services. Elite Testimonial shall indemnify, defend and hold, Client, and its parent companies, subsidiaries, affiliates, and their respective directors, officers, employees, agents, successors and assigns (“Client Indemnified Parties”) harmless from and against any and all Claims, including, but not limited to, reasonable attorneys’ fees, court costs and out-of-pocket expenses, arising out of or related to: (i) any Claim made against a Client Indemnified Party for actual or alleged infringement of the intellectual property or proprietary rights of any third party, that is delivered by Elite Testimonial to Client in connection with the Services rendered pursuant to this Agreement, provided that Client has not altered or modified such intellectual property, content, and/or proprietary rights without Elite Testimonial’s written consent; (ii) a breach by Elite Testimonial of its representations or warranties under this Agreement; (iii) any gross negligence, willful misconduct or fraud committed by Elite Testimonial in connection with the subject matter of this Agreement; and (vi) any labor and employment claim made against Client by a contractor or employee of Elite Testimonial.
6. DISCLAIMERS & LIMITATION OF LIABILITY.
6.1 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, Elite Testimonial DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. Elite Testimonial SHALL IN NO WAY BE RESPONSIBLE OR LIABLE FOR ANY PRODUCTS OR ANY OTHER INFORMATION PROVIDED BY CLIENT. THE SERVICES ARE PROVIDED “AS IS” AND Elite Testimonial SHALL NOT BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. Elite Testimonial MAKES NO REPRESENTATION OR WARRANTY REGARDING THE RESULTS CLIENT WILL OBTAIN BY USING Elite Testimonial’ S SERVICES.
6.2 Limitation of Liability: EXCEPTING EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, AND EXCEPTING CLIENT’S OBLIGATION TO PAY Elite Testimonial IN ACCORDANCE WITH THIS AGREEMENT OR AN APPLICABLE STATEMENT OF WORK, IN NO CASE SHALL EITHER PARTY’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED IN THE AGGREGATE, THE SUM OF THE AMOUNT PAID TO Elite Testimonial PURSUANT TO AN SOW THAT GIVES RISE TO THE DISPUTE IN THE TWELVE MONTHS PRIOR TO THE DATE THAT SUCH DISPUTE ARISES.
6.3 Damage Disclaimer: In no event whatsoever shall either party be liable to the other party hereunder for any incidental, indirect, special, consequential, punitive damages, lost profits, lost revenue, or loss of business opportunity under any tort, contract, strict liability or other legal or equitable theory arising out of, or pertaining to, the subject matter of this Agreement or any Statement of Work, even if said party has been advised of the possibility of or could have foreseen such damages.
7.1 Each party may disclose (the “Discloser”) to the other party (the “Recipient”) certain commercially valuable or otherwise proprietary or confidential information relating to the Services, operations, products, sales and business of the Discloser and its affiliated and related companies or third parties including, without limitation, trade secrets, processes, promotional information, item rankings, data and know-how, software programs, techniques, marketing plans, strategies, forecasts, unpublished copyrightable material, consumer lists, personal information with respect to employees, customers or others, sources of supply, prospects or projections, or any other proprietary or confidential matter, (“Confidential Information”). Confidential Information shall include, but is not limited to, intellectual property, methods, methodologies, business plans, trade secrets, and information relating to any and all aspects of the disclosing party’s business or products. Confidential Information can be contained in any medium, including verbal form, graphic form, machine readable or electronic form, or written or other tangible form, whether or not marked as confidential.
7.2 Each party shall apply to the Confidential Information at least no less security measures and degree of care than those which it applies to its own confidential information but in no event less than a reasonable degree of care. Each party shall only make Confidential Information available to those employees, consultants and agents who have a need to know such Confidential Information in order to carry out the purpose of this Agreement or any Statement of Work; provided, however, the Recipient may disclosure Confidential Information if such disclosure is required pursuant to any government statute, regulation or any court order, provided that the Recipient takes reasonable actions to avoid and/or minimize such disclosure, including, if possible, providing prompt, advance notice of the impending disclosure to enable the Discloser to see a protective order or otherwise prevent such disclosure.
7.3 Confidential Information shall exclude any information that: (a) is or becomes part of the public domain through no wrongful act or failure to act on the part of the Recipient, (b) that is rightfully received by Recipient from a third party in possession of it who was not subject to any restrictions on the disclosure of such information; (c) is approved in writing for release by an authorized officer of the Discloser, or; (d) which has been independently developed by Recipient (as evidenced by its written records) without violation of this Agreement or any rights of the Discloser hereto. The obligations with respect to Confidential Information shall survive for a period of two (2) years after the termination or expiration of this Agreement. The parties shall return the Confidential Information and all corresponding files upon receipt of written request from the other party.
8. Independent Contractors. Nothing contained herein shall be deemed or construed to create any partnership or joint venture between Client and Elite Testimonial. All activities by Elite Testimonial, or its subcontractors, under the terms of this Agreement shall be carried on by Elite Testimonial, or its subcontractors, as an independent contractor and not as an agent for or employee of Client. Under no circumstances shall any employee of Elite Testimonial or employee of its subcontractors be deemed or construed to be an employee of Client, nor shall Elite Testimonial and Client be deemed to be co-employers of any employee or subcontractor. Each party shall be solely responsible for payment of compensation to its personnel. Each party shall pay and report, for all of its personnel all federal and state income tax withholding, social security taxes, and unemployment insurance applicable to such personnel.
9. Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other; provided, however, Elite Testimonial may use the services of subcontractors for the completion of various aspects of the Services. This Agreement shall inure to the benefit of Client and Elite Testimonial and to each of their respective successors, assigns or affiliates.
10. Force Majeure. If either party hereto is prevented from complying, either totally or in part, with any material term(s) or provision(s) of this Agreement by reason of acts of God, acts of a public enemy, acts of any Federal, state or local government, agency or department thereof, quotas, embargoes, acts of any person engaged in subversive activity or sabotage, fires, floods, hurricanes, local, state or national emergency orders, explosions, or other catastrophes, epidemics or quarantine restrictions, involuntary strikes or other labor stoppages, pandemics, viruses (such as COVID-19 or any variant thereof) slowdowns or disputes, or any other cause beyond the control of the parties, then upon prompt written notice to the other party, the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability. The disabled party shall make all reasonable efforts to remove such disability within thirty (30) days of giving notice of such disability. If the disability continues for more than ten (10) days after the cessation of the reason for such disability, the non-disabled party shall have the right to terminate this Agreement immediately upon written notice, and neither party shall thereafter have any further rights or obligations hereunder, except as set forth in the surviving provisions.
11. Notices. All notices, reports, consents and receipts shall be in writing and shall be deemed duly given on (a) the date of personal or overnight courier delivery; or (b) five (5) business days after the date of deposit in the United States mail, by postage paid, return receipt requested first-class mail, addressed as follows:
If to Client: Client to provide information to Elite Testimonial
If to Elite Testimonial: Elite Testimonial
Attn: Accounting Department
Either party may change its mailing address by written notice to the other party by providing notice in accordance with this provision.
12. Intellectual Property.
12.1 Each party expressly agrees that each shall not disclose or reveal to the other party any trade secrets, secret processes, or other proprietary information or documents of any kind, including, without limitation, all copyrights, trademarks, trade names, domain names, patents, patent rights, inventions, industrial designs, trade secrets, and confidential information (collectively, the “Intellectual Property Rights”) which the disclosing party does not have the free and complete right to disclose to the other party and which the party receiving such information is not free to use without liability or restriction of any kind.
12.2 In its performance of the Services hereunder, Client agrees and acknowledges that Elite Testimonial shall retain any and all right, title and interest in the Reserved Technology (as defined below) and the Reserved Technology shall remain the sole property of Elite Testimonial. “Reserved Technology” means any report, programs, code (whether object or source code), graphics, text, know-hows, data provided to Client, images and other materials in whatever form supplied by Elite Testimonial in the performance of the Services which were developed or created by Elite Testimonial prior to the commencement of the Services pursuant to this Agreement. Furthermore, Client expressly agrees that all suggestions, solutions, improvements, corrections and other contributions provided by Client to Elite Testimonial regarding the Services or other materials provided to Client, shall be owned by Elite Testimonial, and Client hereby agrees to assign any and all such rights to Elite Testimonial and shall execute any documents necessary to make such assignment effective. Elite Testimonial shall own all of its delivery data, which shall include, but is not limited to, all materials, information, photography, writings, files, data files, documentation, and other content or materials provided by Elite Testimonial to Client as part of the Services or that is aggregated and collected by Elite Testimonial in order to provide the Services hereunder to Client. For purposes of clarity, Client will own all rights to all raw and final footage that is delivered by Elite Testimonial to Client in connection with the Services pursuant to this Agreement.
13.1 Counterparts. This Agreement may be executed in counterparts, including by means of .pdf, email or faxed signature pages, any one of which need not contain the signature of more than one party, each of which shall be deemed an original, but all of which together shall constitute the entire Agreement.
13.2 Entire Agreement. This document, including attachments and exhibits hereto and any documents incorporated by reference herein, constitutes the entire agreement and understanding between the parties regarding the subject matter hereof, and supersedes and merges all prior discussions and all oral and/or written agreements between them relating thereto.
13.3 Waiver. No waiver, modification or amendment to this Agreement shall be valid unless in writing, signed by the parties hereto. No usage of trade or course of dealing between or among any persons having any interest in this Agreement will be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any party hereunder. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.
13.4 Governing Law & Jurisdiction. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Massachusetts (without regard to the conflicts or choice of law principles thereof). Elite Testimonial and Client hereby agree and consent to the exclusive jurisdiction of the state and/or federal courts located in the state of Massachusetts for purposes of enforcing the terms of this Agreement, and each party hereby expressly waives any objection to the laying of venue or the personal jurisdiction of such courts.
13.5 WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BY EITHER PARTY IN CONNECTION HEREWITH.
13.6 Non-Exclusive. This Agreement is non-exclusive. Nothing in this Agreement restricts either party from developing, marketing, selling, licensing, and/or distributing its products or services in the normal course of business or through its standard sales or business channels.
13.7 Interpretation. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be found to be illegal or invalid under applicable law, such provision shall be either modified to conform to applicable law or considered ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
13.8 Non-Solicitation: Each party to this Agreement agrees that during the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, no party shall, either directly or indirectly, solicit, induce, recruit, encourage, or cause any; (i) employee, consultant, independent contractor, vendor, supplier, agent or representative of who has been introduced to the other party in connection with the Services provided pursuant to this Agreement, to leave or cease the employment or engagement with such party, and/or other business relationship with such party, or (ii) customer, client, potential customer or client, or other person buying goods or services from a party to this Agreement, from ceasing or diminishing their business relationship with such party or otherwise interfering with the contracts and relationships of such party. The parties agree that the restrictions imposed by this covenant are fair and reasonable, and are reasonably required for the protection of each party, and form a material part of this Agreement. If the foregoing restriction exceeds the maximum restriction that a court of competent jurisdiction would enforce, then the restriction shall be deemed limited to be the maximum that such court would enforce. In the event a party breaches this provision, the breaching party agrees to pay as liquidated damages a cash fee equal to one hundred percent (100%) of the hired employee’s, consultant’s, independent contractor’s, advisor’s, agent’s, or representative’s first year base compensation. Notwithstanding the foregoing, general job postings and advertisements that are not specifically targeted towards a specific person or individual shall not be deemed to be solicitations for purposes of this Section 13.8.
13.9 Survival. The provisions of this Agreement which by their nature intend to survive the termination or expiration shall so survive the termination or expiration of this Agreement.
13.10 No Duress. Each party acknowledges that it: (i) has reviewed this Agreement with competent counsel of its’ choosing before executing this Agreement; (ii) has carefully read and understands the terms of this Agreement; and (iii) has signed this Agreement freely and voluntarily and without duress or coercion and with full knowledge and understanding of its significance and consequences of the terms of this Agreement.