Master Services Agreement
Last updated Nov 18, 2021
Margarita Eberline. LLC
DEVELOPMENT AND SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is made and entered into by and between Margarita Eberline, LLC. a Georgia corporation, and the company that is executing this Agreement (hereinafter “Customer”) with Margarita Eberline and this Agreement shall govern the Services (as defined below) provided by Margarita Eberline, LLC for the Customer as referenced herein.
In consideration of the mutual agreements below, and intending to be legally bound, the parties agree as follows:
RECITALS
WHEREAS, Vendor is a sales and marketing company that has created valuable and beneficial products and services and wishes to provide marketing services to Client, and
WHEREAS, Client desires to engage and contract for the services of Vendor to perform certain services as detailed in this electronic business proposal (“Business Proposal”) as set forth herein, and
NOW, THEREFORE, in consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the Parties agree as follows:
- Scope of Agreement.
1.1 Services; Statements of Work. This Agreement is intended to be the master agreement under which Client may request professional services, whether ongoing or project based, to be performed by Vendor (the “Services”). Vendor shall provide only those Services specified in the written Statement of Work (“SOW”) as part of this Business Proposal. Each Proposal and SOW is governed exclusively by the terms of this Agreement, whether or not this Agreement is specifically mentioned.
1.2 Change Requests. Any changes to an executed SOW (a “Change Request”) must be mutually agreed to in writing by the Parties. Client acknowledges that a Change Request may impact delivery schedules and fees for the Services provided.
2. Term and Termination.
2.1 Project Services Term. For any projects (as defined in the SOW and/or having a start and completion with no ongoing services), this Agreement commences on the Effective Date and will remain in effect until all obligations in the SOW have been satisfied for that specific project (the “Termination Date”).
2.2 Ongoing Services Term. For any ongoing services or activities by the Vendor on behalf of the Client, this Agreement will remain in effect unless and until either Party provides written notice of its intention not to renew and or continue services at least sixty (60) days prior to the Termination Date (the “Termination Date”).
2.3 Termination for Cause. Either Party may immediately terminate this Agreement or any SOW for “cause” if: (a) the other Party is in material breach of this Agreement and fails to correct the breach within thirty (30) days after written notice from the non-breaching Party, or (b) the other Party commences bankruptcy or insolvency proceedings.
2.4 Effects of Termination. Termination of this Agreement by either Party will not limit a Party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Client from its obligation to pay all fees and expenses that Client has agreed to pay under this Agreement. Upon termination of this Agreement by Vendor for any reason, all licenses granted to Client will immediately terminate. If any license granted under this Agreement is terminated, Client shall (a) immediately cease using the licensed materials, and (b) certify in writing to Vendor within thirty (30) days after termination that Client has destroyed or returned these materials and all copies remaining in Client’s possession to Vendor. This requirement applies to copies in all forms, partial and complete, and whether or not modified or merged into other materials.
3. Pricing and Payment Terms.
3.1 Services. Client shall pay Vendor for the Services in accordance with the fees and payment terms established in the applicable SOW. Vendor reserves the right, at its sole discretion, to adjust pricing for ongoing services by supplying notice to Client and new pricing will become effective within thirty days of said notice.
3.2 Expenses. Client shall reimburse Vendor for actual expenses (including travel and mileage) incurred by Vendor in the performance of Services, if any. Client hereby authorizes Vendor to charge the credit card on file ten (10) days after submitting invoice for said expenses to Client. A summary of expenses will be included in the invoice for the associated Services. Vendor reserves the right to add an additional 10% administrative fee to any expenses charged to Client.
3.3 Payment Terms. Unless otherwise stated on the applicable SOW, all payments for Project Services are due in advance of said service. Unless otherwise stated on the applicable SOW, all payments for Ongoing Services are due on or before the first of the month before services for that month will begin, or more specifically as detailed in the specific SOW. For all amounts not paid when due, Client shall pay a $10 late fee for every day past due. All payments are due even if Client is disputing in good faith, and any dispute over paid or unpaid fees does not relieve the Client of its obligation to pay.
3.4 Taxes. All applicable transaction taxes, including sales and use taxes, value added taxes, and other transactional charges such as duties, customs, tariffs, imposts, and government-imposed surcharges (“Transaction Taxes”) will be paid by Client, and are not included in Vendor’s pricing. If Vendor is required to collect Transaction Taxes from Client and remit them to a taxing authority, Vendor will separately state the Transaction Taxes on an invoice. Each Party is responsible for its own income taxes or taxes based on gross revenues or gross receipts.
3.5 Failure to Pay. Client acknowledges that its failure to pay timely any of the fees, including expenses, payable is a material breach of this Agreement and will upon notice by Vendor put the Vendor in default of this Agreement for which Vendor may, in addition to pursuing all other remedies, withhold the Services or terminate this Agreement. Nothing in this section will prevent the Vendor from pursuing all of its rights, including the acceleration of full payment of agreed fees and Services. In the event of default in the payment of any fees for Project Services when due and upon notice, Vendor may, without further notice or demand, declare the entire principal sum then unpaid immediately due and payable. Client understands that Vendor pricing is based on completion of the project and that Vendor incurs substantial costs to initiate any Project and therefore agrees that such accelerated payments represent a fair and reasonable estimate of the costs and damages that will be incurred by Vendor as a result of the early termination of the Agreement. Client shall also reimburse Vendor for all expenses incurred by Vendor in exercising any of its rights under this Agreement or applicable law with respect to a default in payment by Client, including reasonable attorney fees and the fees of any collection agency retained by Vendor.
4. Warranties.
4.1 Services Warranty. Vendor warrants that it will perform the Services in a professional and workmanlike manner utilizing properly trained personnel. For any alleged breach of this warranty, Client must provide a written claim within ten (10) business days after provision of the applicable Services specifying in reasonable detail the nonconformance, and Vendor shall review and determine what if any action is necessary in its sole discretion. Upon a determination by Vendor that there is indeed a breach of this Warranty, Vendor shall exercise commercially reasonable efforts to re-perform the identified nonconforming Services or if Vendor concludes that re-performance of these non-conforming Services is impracticable, then Vendor will refund the fees paid by Client to Vendor allocable to those nonconforming Services.
4.2 Deliverables Warranty. Vendor warrants that it will provide the specific deliverables identified in each SOW (the “Deliverables”) and that the Deliverables will conform substantially to the requirements specified in the applicable SOW. Each Deliverable will be subject to Acceptance by Client in accordance with Section below to verify that the Deliverable satisfies this warranty. If Client does not provide written notice to Vendor that Client has a claim for breach under this Section within thirty (30) days after Acceptance of a Deliverable, then its right to make the claim will be waived and terminate.
4.3 Acceptance Procedures for Deliverables. Client will have fifteen (15) days, or any different period specified in the applicable SOW, after notice from Vendor of a completed Deliverable (the “Acceptance Period”) to either (a) notify Vendor in writing of its acceptance of the Deliverable (“Acceptance”), or (b) if Client reasonably believes that the Deliverable fails to conform substantially to the requirements set forth in the applicable SOW, notify Vendor in writing specifying in reasonable detail the nonconformance (“Rejection”). Any failure by Client to notify Vendor in writing of its Acceptance or Rejection of a Deliverable within the Acceptance Period will be deemed as Acceptance. Upon receipt by Vendor of a written notice of Rejection specifying the nonconformance, Vendor shall utilize commercially reasonable efforts to substantially conform the Deliverable to the applicable requirements per the procedure outlined above in Paragraph 4.1. If the Deliverables are being developed on a time and materials basis, then the continuing work done to create them will continue to be done on a time and materials basis.
4.4 Third-Party Products. Vendor is not responsible for the performance of any hardware, software, or other materials provided by third parties. Product warranties for third-party products, if any, are provided by the third parties and not by Vendor. Vendor’s sole obligation is to act on behalf of Client to assist in the satisfaction of these warranties.
5 Disclaimers.
5.1 The express remedies in Section 4 constitute Client’s exclusive remedies, and Vendor’s sole obligation and liability, for any claim (a) that the Services or deliverables do not conform to specifications or are otherwise defective, or (b) that any Services were performed improperly.
5.2 EXCEPT FOR THE WARRANTIES IN SECTION 4, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” AND VENDOR MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
5.3 VENDOR DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT SPECIFIED IN THIS AGREEMENT OR AN SOW, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
5.4 No statement by any Vendor employee or agent, orally or in writing, will serve to create any warranty or obligation or to otherwise modify this Agreement.
6. Limitation of liability.
6.1 VENDOR WILL NOT BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, SAVINGS, REVENUE, OR USE, DAMAGED OR LOST FILES OR DATA, OR BUSINESS INTERRUPTION) IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES BASED ON ACTIONS OR OCCURRENCES THAT OCCURRED MORE THAN ONE YEAR BEFORE THE OTHER PARTY PROVIDES NOTICE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY IN THIS AGREEMENT AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES.
6.2 CLIENT ACKNOWLEDGES THAT THE FEES CHARGED BY VENDOR IN THIS AGREEMENT REFLECT ITS OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND A MODIFICATION OF THESE PROVISIONS WOULD SUBSTANTIALLY AFFECT THE FEES CHARGED BY VENDOR. IN CONSIDERATION OF THESE FEES, CLIENT AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
7. Confidential Information.
7.1 Definitions. In the course of performing under this Agreement, either Party (a “Disclosing Party”) may provide Confidential Information to the other Party (a “Recipient”). For purposes of this Agreement, “Confidential Information” may include, but is not limited to, specifications, manuals, business plans, software, marketing plans, financial information, proposals, job notes, Client or referral lists, agreements, trade secrets, recipes, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, diagrams, data, computer programs, business activities and operations, reports, studies and other technical and business information of and about its products, services and business, Vendor Intellectual Property (as defined in Section 8) or any proprietary information of a Disclosing Party that is not generally available to the public or that would generally be considered as such. All Confidential Information will remain the property of the Disclosing Party.
7.2 Obligations. The Recipient acknowledges that Confidential Information is entrusted to it in confidence, and the reputation and success of the Disclosing Party depends on maintaining and safeguarding the secrecy of its Confidential Information. The Recipient, during and after the term of this Agreement: (a) shall use the same level of care to protect the confidentiality of the Confidential Information as it does to protect its own Confidential Information, but not less than a reasonable degree of care; (b) shall not use any Confidential Information except for the purpose of fulfilling its obligations or exercising its rights under this Agreement; (c) shall not, or permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make any Confidential Information available to others without the prior written consent of the Disclosing Party; and (d) shall not remove, or permit to be removed, any notice indicating the confidential nature of the Confidential Information. The Recipient shall return all Confidential Information at the earlier of the termination of this Agreement or upon the request of the Disclosing Party, except that the Recipient may retain a limited number of electronic backup copies of the Confidential Information as are automatically created and retained by its standard backup processes and systems. The Recipient shall comply with its non-disclosure obligations under this Section regarding these copies and shall destroy them in accordance with its normal destruction processes.
7.3 Exceptions. The Recipient is not obligated under this Section for Confidential Information that (a) is generally known, or readily ascertainable by proper means, by the public other than through a breach of this Agreement by the Recipient; (b) was known by the Recipient on a non-confidential basis prior to receipt under this Agreement as evidenced by the Recipient’s written records; or (c) is rightly received by the Recipient from a third party not subject to any non-disclosure obligations with respect to the Confidential Information.
7.4 Compelled Disclosure. If the Recipient receives a request to disclose all or any part of the Confidential Information by a subpoena or order issued by a court or other governmental agency, the Recipient shall: (a) immediately notify the Disclosing Party of the existence, terms and circumstances surrounding the request; (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required, upon the Disclosing Party’s request, cooperate with the Disclosing Party at the Disclosing Party’s expense to obtain an order or other reliable assurance that confidential treatment will be accorded to the portion of Confidential Information as the Disclosing Party may designate.
8. Proprietary Rights.
8.1 Work Made for Hire. Excluding any components or modules that are Vendor Intellectual Property (as defined below) or that are identified as owned by Vendor in the applicable SOW, and subject to Client’s full payment of all fees and expenses owed to Vendor under this Agreement, the content created specifically and exclusively developed by Vendor for Client pursuant to an SOW (the “Client Materials”) will be deemed work made for hire, as that term is defined in the U.S. Copyright Act, and, except as otherwise specified in an SOW, Vendor hereby assigns to Client all rights, title, and interest it may have in the Client Materials.
8.2 Vendor Intellectual Property. The Parties acknowledge that Vendor may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how, or other intellectual property owned by Vendor or its licensors, and Vendor may also create additional intellectual property based thereon in the performance of the Services (all of the foregoing, the “Vendor Intellectual Property”). All proprietary rights to the Vendor Intellectual Property, as it existed on the Effective Date and as it may be modified or created in the course of providing the Services, including patent, copyright, trademark, and trade secret rights are the sole and exclusive property of Vendor, free from any claim or retention of rights by Client, and Client hereby assigns to Vendor any rights it may have in any of the foregoing. Client does not have the right to reuse, resell, or otherwise transfer material owned by the Vendor. Furthermore, the Vendor may use, in its discretion and at the request of Client, photographs owned or licensed by the Vendor. Unless otherwise specified in an SOW, the Vendor expressly maintains exclusive ownership of such photographs, and only grants Client those rights set forth in section 8.3 below.
8.3 Client License Rights. Vendor hereby grants to Client a perpetual, worldwide, royalty-free, nonexclusive, nontransferable right and license to use, execute, reproduce, transmit, display, perform, create derivative works from, make, have made, sell, and import any Vendor Intellectual Property that has been combined with the Client Materials, only for Client’s own internal business purposes and to provide products or services to its Clients consistent with the purposes of the Services for so long as Vendor allows. This section may be modified in an SOW signed by both Parties. The terms of this license do not survive the expiration or termination of this Agreement.
8.4 Restrictions. Client shall not copy, use, modify, or distribute any Vendor Intellectual Property except as expressly licensed in Section 8.3. Client shall not separate the Vendor Intellectual Property from the Client Materials or cause or permit the modification, distribution, disassembly, or other translation of the Vendor Intellectual Property. Client shall not alter, change, or remove from the Vendor Intellectual Property any identification, including copyright and trademark notices, and shall include these markings on any copies. Failure to comply with this section is a material breach of this Agreement.
9. Client Responsibilities
9.1 Provision of Materials and Services. Client shall provide Vendor with access to all information regarding Client requested by Vendor that is necessary for Vendor to perform the Services. Client acknowledges that from time to time (a) Vendor may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for Vendor to meet Client’s requirements. If an SOW requires Vendor to purchase any assets in connection with Vendor providing the Services, these assets will remain the sole property of Vendor unless specifically stated otherwise in the SOW. Client is responsible for the quality, completeness, and workmanship of any item or service furnished by it and for ensuring that the materials provided to Vendor do not infringe or violate the rights of any third party. Client shall maintain adequate backup for all data and other items furnished to Vendor.
9.2 Timeliness. Any timetable in an SOW is dependent on timely receipt from Client of all necessary items and authorizations to be supplied by it. Any completion date will be deferred for a period equal to the time lost due to a delay in delivery of these items by Client.
9.3 Client Use Indemnity. Client shall defend, at its own expense, any suit, action or proceeding brought against Vendor by a third party based on any claim arising in connection with Client’s direct or indirect use of the Services (a “Use Action”), and Client shall pay damages incurred by Vendor in the Use Action, or those damages agreed to in a settlement of the Use Action, and all reasonable attorney fees incurred in connection therewith. Vendor shall (a) notify Client promptly in writing of the claim, (b) tender to Client sole control of the defense or settlement of the Use Action, and (c) cooperate and, at Client’s expense, assist in the defense. Vendor will have the right to participate at its own expense in the Use Action or related settlement negotiations using counsel of its own choice.
10. Non-solicitation. During the term of this Agreement and for an additional twelve (12) months, Client may not, directly or indirectly through another party, (a) solicit for employment or engagement as an independent contractor, or (b) employ or engage as an independent contractor, any person who is or was an employee or contractor of the Vendor during the twelve (12) month period prior to these actions, without the prior written consent of the Vendor.
11. General.
11.1 Notice. All notices under this Agreement, including notices of address change, must be in writing and will be deemed given when sent by (a) registered mail, return receipt requested, or (b) a nationally recognized overnight delivery service (such as Federal Express) to the appropriate Party at the relevant address first listed above, or to a Party’s address as changed in accord with this Section.
11.2 Legal Expenses. If legal action is taken by either Party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing Party, including reasonable attorney fees and costs of litigation, will be paid by the other Party.
11.3 Severability. If a provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining provisions will remain in full force and effect.
11.4 Governing Law. This Agreement is governed by the laws of the State of Georgia, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.5 No Waivers. No failure to exercise, and no delay in exercising, any right will operate as a waiver; nor will any single or partial exercise of a right preclude any further exercise of that right or the exercise of any other right. The waiver by a Party of a breach of this Agreement will not constitute a waiver of any other breach.
11.6 Assignment. Neither Party may assign or transfer, by merger, operation of law, or otherwise, this Agreement or any right or duty under this Agreement to a third party without the other Party’s prior written consent, except that Vendor may transfer this Agreement, together with all of its rights and duties under this Agreement, to a successor entity if Vendor is acquired, whether by equity or asset purchase, merger, corporate restructuring or reorganization, or the like. Any purported assignment in violation of this Section is void.
11.7 Independent Contractor; Use of Subcontractors. Vendor is an independent contractor and nothing in this Agreement or related to Vendor’s performance will be construed to create a joint venture relationship between Client and Vendor, or an employee relationship between Client and any Vendor employee or subcontractor. Vendor may, in its discretion, utilize subcontractors to provide the Services. Nothing in this Agreement shall give either Party the ability to bind or obligate the other Party.
11.8 No Third-Party Beneficiaries. This Agreement is an agreement between the Parties and confers no rights upon any of the Parties’ employees, agents, contractors or Clients, or upon any other person or entity.
11.9 Construction of this Agreement. Each of the Parties and their counsel have carefully reviewed this Agreement, and accordingly, no rule of construction to the effect that any ambiguities in this Agreement are to be construed against the drafting Party will apply in the interpretation of this Agreement.
11.10 Force Majeure. Except with regard to any obligation to pay money, neither Party will be held responsible for any delay or failure in performance caused by fire, flood, embargo, strike, labor dispute, delay or failure of any subcontract, telecommunications failure or delay, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond that Party’s reasonable control. If any of these events does occur, the time to perform an affected obligation will be extended by the length of time the event continues.
11.11 Entire Agreement. This Agreement together with the SOWs, which are hereby incorporated in this Agreement, contain all the agreements, representations, and understandings of the Parties and supersedes any previous understandings, commitments, representations, or agreements, oral or written, with respect to the subject matter of this Agreement. If there is any inconsistency between a term of this Agreement and a term of any SOW, the term of this Agreement will govern.
11.12 Modification. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party (including an SOW) that expressly states the sections of this Agreement to be modified; no other act, usage, or custom will be deemed to amend or modify this Agreement. Each Party hereby waives any right it may have to claim that this Agreement was subsequently modified other than in accordance with this
CONTACT
For comments, questions or concerns about the service agreement please contact us at:
Margarita Eberline, LLC
17 Lost Grove CT NW, Lilburn GA 30047
(770) 670-3613
legal@marketing-boss.com