MASTER SERVICES AGREEMENT TERMS AND CONDITIONS

 

WHEREAS, Client desires to engage Service Provider and Service Provider desires to be engaged by Client subject to the terms and conditions provided herein.

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

1.              DEFINITIONS. Capitalized terms used and not otherwise defined herein shall have the following meaning:

 

a)             “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise

b)             “Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Miami, Florida are authorized or required by applicable law to be closed for business.

c)              “Client Materials” means any documents, data, know-how, methodologies, software and other materials provided to Service Provider by Client, including computer programs, reports and specifications.

d)             “Deliverables” means all documents, work product and other materials that are delivered to Client hereunder or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in a Statement of Work.

e)              “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

f)              “Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

g)             “Pre-Existing Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement or independently of this Agreement.

h)             “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

i)               “Project” means a project as described in a Statement of Work.

j)              “Service Provider Personnel” means all employees and Subcontractors, if any, engaged by Service Provider to perform the Services.

k)             “Services” mean any professional or other services to be provided by Service Provider under this agreement, as described in more detail in a Statement of Work, and Service Provider’s obligations under this Agreement.

l)               “Statement of Work” means each Statement of Work entered into by the parties and attached to this Agreement.

m)           “Subcontractor” means any third-party contractor or vendor chosen by Service Provider to provide a specific product or service in connection with any Project. 

 

2.              SERVICES.

a)             Client hereby engages Service Provider, and Service Provider hereby accepts such engagement, as an independent contractor, to provide the Services to Client as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement. In connection with performing the Services, Service Provider is authorized to subcontract the Services to such third-party subcontractors as Service Provider may determine in its sole discretion.

b)             Each Statement of Work shall include the following information, if applicable:

                                                   i.         detailed description of the Services to be performed pursuant to the Statement of Work;

                                                 ii.         the date upon which the Services will commence and the term of such Statement of Work;

                                                iii.         the fees to be paid to Service Provider under the Statement of Work;

                                                iv.         any criteria for completion of the Services and/or Project; and

                                                  v.         any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.

3.              CLIENT OBLIGATIONS.

a)             Client shall appoint an individual and notify Service Provider of their selection of “Authorized Person” to receive all correspondence, whether written, oral or electronic, arising from or relating to this Agreement and the Services provided, including but not limited to all draft work product Service Provider may create on behalf of Client hereunder. The Authorized Person shall have full decision-making authority to approve all matters on behalf of Client arising from or relating to this Agreement and the Services provided and Service Provider shall be entitled to rely on the Authorized Person without the need to seek confirmation from any other Person. Client may remove and replace an Authorized Person for any reason without the consent of Service Provider. In the event Client appoints a new Authorized Person, Client shall promptly notify Service Provider in writing.

b)             Client shall:

                                                   i.              cooperate with Service Provider in all matters relating to the Services;

                                                 ii.              respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement; and

                                                iii.              provide such information as Service Provider may request in order to carry out the Services in a timely manner and ensure that it is completed.

c)              Client hereby grants Service Provider access to its server, including FTP, Cpanel, and website admin rights, and Client’s Google Analytics, Google Ads, Google Webmaster Tools, Google My Business, Google Merchant Center, if applicable, and all other accounts needed to perform the Services. Client shall provide Service Provider with all information, including any passwords, necessary for Service Provider to access the forgoing.

d)             If Client has an open source website, or has an open source website being developed, Client agrees to promptly select a web hosting provider which allows Service Provider full FTP access to the website hosting environment.

e)              If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, any Authorized Person or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

f)              With respect to any website developed by Service Provider on behalf of Client hereunder, Client acknowledges and agrees that:

                                                   i.              prior to completion, Client’s access to the website shall be limited to viewing and testing the website at such times and to such extent as Service Provider reasonably determines;

                                                 ii.              Service Provider shall host the site on a development / staging server prior to launch;

                                                iii.              Service Provider reserves the right to go offline for purposes of maintenance, upgrades and testing;

                                                iv.              Service Provider may recommend hosting providers to the Client; provided that Service Provider is not responsible for any issues or interruptions in service with any hosting provider;

                                                  v.               upon completion, Service Provider shall provide Client with full access to the website files and databases and shall provide all files at such a time and Client hereby authorizes Service Provider to submit Client’s completed website to any internet search engine; and

                                                vi.              Service Provider is not the host or otherwise responsible for hosting such website, such website shall be hosted by a third party, and Client shall look solely to that third party (and not Service Provider) for any Losses incurred by Client as a result of such website crashing for any reason, including but not limited to a surge in Internet traffic to such website.

g)             Client shall not lock Service Provider out of its website or related accounts prior to Service Provider receiving full payment of fees and expenses as provided in this Agreement. 

h)             Client authorizes Service Provider to display Deliverables provided by Service Provider to Client hereunder as examples of Service Provider’s work product in any of Service Provider’s marketing materials, whether online or offline and in any format. 

i)          Client acknowledges and agrees that Service Provider shall not be responsible for or have any liability with respect to any Losses incurred by Client arising from or relating to any modifications made by any third party to any Deliverables provided hereunder, including but not limited to Client’s websites, digital media, and other materials once placed.

4.              CHANGE ORDERS.

a)             If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other in writing. Service Provider shall, within a reasonable time after such request (and, if such request is initiated by Client, not more than 10 Business Days after receipt of Customer’s written request), provide a written estimate to Client of:

                                                   i.              the likely time required to implement the change; any necessary variations to the fees and other charges for the Services arising from the change; the likely effect of the change on the Services; and any other impact the change might have on the performance of this Agreement.

b)             Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 13(h).

5.              TERM.

 

a)             This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the services under all Statements of Work and for a minimum term of twelve months as provided herein. The period beginning the Effective Date and ending the date this Agreement is terminated as provided herein is referred to herein as the “Term”. 

 

6.              FEES AND EXPENSES; PAYMENT TERMS.

a)             In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 5 shall constitute payment in full for the performance of the Services, and, Client shall not be responsible for paying any other fees, costs or expenses.

b)             Where the Services are provided on a time and materials basis:

                                                   i.              the fees payable for the Services shall be calculated in accordance with Service Provider’s hourly fee rates set forth in the applicable Statement of Work; and

                                                 ii.              Service Provider shall issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, calculated as provided in this Section 5(b), together with a detailed breakdown of any expenses for such month incurred in accordance with Section 5(d).

c)              Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in installments, as set out in the Statement of Work. Service Provider shall issue invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 5(d).

d)             Client agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Customer.

e)              Service Provider shall issue invoices to Client only in accordance with the terms of this Section, and Customer shall pay all properly invoiced amounts due to Service Provider within thirty (30) calendar days after Customer’s receipt of such invoice. In the event Client does not object to any invoice issued by Service Provider within ten (10) calendar days after issuance, Client shall be deemed to have accepted such invoice as complete and accurate as stated and Client waives the right to later object to the accuracy or reasonableness. In the event Client fails to pay such amount when due, Client shall pay to Service Provider, in addition to the amount due, a late fee equal to 5.00% of the amount due (the “Late Fee”) plus interest on the aggregate amount due plus Late Fee at the highest maximum legal rate beginning the applicable due date until paid, compounded monthly.  In addition, in the event a check, draft, order, payment debit card order or electronic funds transfer (each a “Payment Instrument”) is refused by the drawee because of lack of funds, lack of credit, lack of an account or stop payment, Client shall have 15 days from the date Service Provider notifies Client of same to tender payment in the full amount of the Payment Instrument plus a service charge equal to the greater of:

                                                   i.              $25.00 if the face value does not exceed $50.00; $30.00 if the face value is more than $50.00 but does not exceed $300.00; $40.00 if the face value is more than $300.00; or

                                                 ii.              5% of the of the face amount of the Payment Instrument. This policy is pursuant to Florida Statutes s. 68.065. All payments hereunder shall be in US dollars.

f)              Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, Personnel or real or Personal property or other assets.

7.              RELATIONSHIP OF THE PARTIES.   

a)             Service Provider is an independent contractor of the Client and this Agreement shall not be construed to create any association, partnership, joint venture or agency relationship between Client and Service Provider for any purpose.

8.              TERMINATION; EFFECT OF TERMINATION.

a)             Either party, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, after the initial twelve-month term, without cause, by providing at least thirty (30) calendar days’ prior written notice to the other party. If this Agreement is canceled by Client without cause within twelve months of the Effective Date, Client still owes the contract value.

b)             Upon expiration of this Agreement for any reason:

                                                   i.              Client shall promptly pay Service Provider for all costs incurred by Service Provider (including outstanding invoices due to Subcontractors and any advance payments made by Service Provider to Subcontractors) on or prior to the date Client notifies Service Provider of such termination, to the extent not previously paid by Client.

                                                 ii.              Upon payment of all applicable fees and other expenses to be paid hereunder by Client, Service Provider shall deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Customer Materials.

9.              INTELLECTUAL PROPERTY.

a)             Effective immediately upon payment of all applicable fees and other expenses to be paid by Client to Service Provider for any applicable Deliverables and except as set forth in Section 8(c), Service Provider hereby grants to Client all right, title and interest in and to such Deliverables, including all Intellectual Property Rights therein. Service Provider agrees and will cause its Service Provider Personnel to agree (to the extent reasonably feasible), that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Client (to the extent reasonably feasible), in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause, to the extent reasonably feasible, the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverable.

b)             Upon the reasonable request of Client, Service Provider shall, and shall to the extent reasonably feasible cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect or record its rights in or to any Deliverables.

c)              Notwithstanding anything in this Agreement to the contrary, Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 18.7), non-sublicenseable, worldwide license to any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.

10.             COVENANTS.

a)             Client agrees and covenants that, during the Term and for a period of two (2) years after this Agreement is terminated, for any reason, it shall not, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit, or otherwise engage in any business relationship of any kind with any of Service Provider’s Personnel, without the prior written consent of Service Provider, which may be given or withheld in Service Provider’s sole and absolute discretion.

b)             Client agrees and covenants that it shall not, either now or in the future, directly or indirectly, at any time, make, publish or communicate, to any Person or entity, or in any public forum,  any defamatory, maliciously false, or disparaging remarks, comments, or statements concerning Service Provider or its business(s) or any of its employees, officers, or managers, its existing and prospective customers, suppliers, investors or any other associated third parties.  

11.            REPRESENTATIONS AND WARRANTIES.

a)             Client represents and warrants that:

                                                   i.              Client is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Client has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Client. This Agreement has been duly executed and delivered by Client, and (assuming due authorization, execution and delivery by Service Provider) this Agreement constitutes legal, valid and binding obligations of Client, enforceable against Client in accordance with their respective terms.

                                                 ii.              No consent, approval, waiver or authorization is required to be obtained by Client from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Client of this Agreement and the consummation of the transactions contemplated hereby.

                                                iii.              Client shall be responsible for all fees and costs of any Subcontractor incurred by Service Provider in connection with any Project, including any additional fees and costs incurred in excess of amounts previously quoted or included in a Statement of Work, provided that Client previously consented to or otherwise requested such additional fees and costs.

                                                iv.              Client owns or has an adequate, valid and enforceable rights to use all Intellectual Property provided to Service Provider for use by Service Provider in connection with providing the Services and any products delivered hereunder (such Intellectual Property, the “Client IP”). The use by Service Provider of any Client IP in accordance with this Agreement will not infringe or otherwise conflict with the rights of any other Person or entity. There is no settled, pending, or threatened litigation, opposition, or other claim or proceeding challenging the validity, enforceability, ownership, registration, or use of any Client IP.

b)             Service Provider represents and warrants that:

                                                   i.              Service Provider is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws of its jurisdiction of formation. Service Provider has full power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by Service Provider of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Service Provider. This Agreement has been duly executed and delivered by Service Provider, and (assuming due authorization, execution and delivery by Client) this Agreement constitutes legal, valid and binding obligations of Service Provider, enforceable against Service Provider in accordance with their respective terms.

                                                 ii.              No consent, approval, waiver or authorization is required to be obtained by Service Provider from any Person or entity (including any governmental authority) in connection with the execution, delivery and performance by Service Provider of this Agreement and the consummation of the transactions contemplated hereby.

c)              EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

12.             INDEMIFICATION.

a)             Client shall defend, indemnify and hold harmless Service Provider and its officers, managers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from:

                                                   i.               bodily injury, death of any Person or damage to real or tangible, Personal property resulting from the grossly negligent or willful acts or omissions of Client; and

                                                 ii.               Client’s breach of any representation, warranty or obligation of Client in this Agreement.

13.             MISCELLANEOUS.

a)             Representations; Warranties. The Parties warrant, represent, covenant and agree that

                                                   i.              each is free to and has the right, power, ability and authority to enter into the Agreement;

                                                 ii.              the execution and performance of all obligations hereunder will not violate applicable law, or the legal or equitable rights of any third party;

                                                iii.              there are no employment contracts or understandings, restrictive covenants or other restrictions, whether written or oral, preventing, or which will have an impact on, the performance of the duties hereunder; and

                                                iv.              all work or Services performed will not infringe on any copyright, trademark, or other proprietary rights, including rights of privacy or publicity.

b)             Severability.  This Agreement has been fairly and fully negotiated between the Parties and should be considered as having been drafted jointly by the Parties hereto and shall be interpreted and performed as if so drafted without construction in favor of or against any Party.   All the provisions of this Agreement are intended to be distinct and severable. In the event that any provision of this Agreement is determined by any court to be invalid or unenforceable as between the Parties, such determination shall not affect the remainder of this Agreement and the remaining provisions shall remain binding and in full force and effect.

c)              Assignment.  This Agreement shall be binding upon and inure to the benefit of the undersigned Parties, their successors and assigns, however, neither Party may assign this Agreement or any right, interest or obligation hereunder to any person without the written consent of the other.

d)             Notices.  All notices, approvals, requests, instructions, consents and other communications given pursuant to this Agreement shall be in writing and shall be deemed received (i) on the same day if delivered in person, by same-day courier, or by  telegraph, facsimile transmission or by delivery of a PDF file through email; (ii) on the next business day if delivered by overnight mail or courier; (iii) on the date indicated by return receipt, or if there is no such receipt, on the 5^th business day after delivery by certified or registered mail, postage prepaid, to the party for whom it is intended at the following addresses:

If to Company: BrandStar Digital Attn: Seth Rand Title: Address:                        Tel: 844.200.2525                                Email:	If to Client: Company Name Attn: Title:               Address:          Tel:                              Email:

 

e)              Enforcement.  In the event either Party shall commence any action or proceeding against the other Party to enforce the terms of this Agreement, or to seek a judicial declaration of rights under this Agreement, the prevailing Party in such action shall be entitled to recover reasonable attorneys’ fees and documented costs incurred in connection with such action, including such fees and costs incurred through appeals and in enforcing any Judgment awarded to the prevailing Party.

f)              Governing Law and Venue.  This interpretation, validity and enforcement of this Agreement shall be governed in accordance with the laws of the State of Florida without regard to the conflicts of law provisions thereof and to the exclusion of the law of any other forum.  All actions or proceedings arising in connection with this Agreement shall be brought or otherwise resolved exclusively in the state or federal courts located in the County of Broward, State of Florida.  This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.  Each Party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to the venue with respect to any proceeding brought in accordance with this Section.

g)             Force Majeure. In the event of a “Force Majeure” event which prevents the performance of any Party’s obligations hereunder, such Party to the Agreement shall not be in breach of the Agreement. A “Force Majeure” event shall include, but not be limited to, strikes, boycotts, war, acts of God, terrorism, riots, delays of commercial carriers, third party contract disputes related to this Agreement, restraints of public authority, or other occurrence beyond the control of the non-performing Party.

h)             Each party acknowledges that a breach by a party of Section 8 or Section 9 may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

i)               Entire Agreement.  This Agreement, and all schedules, exhibits and Statements of Work, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties, and represents the entire understanding and agreement between the Parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings and representation made by and between the Parties with respect to such subject matter. There will be no amendment or alteration to this Agreement unless embodied in a written instrument and executed by all Parties.

j)              This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.