This Master Services Agreement (the “MSA” or “Agreement”) shall govern the provision of services to the undersigned client (the “Client”) by 923 Digital, LLC (the “Agency”). This MSA sets forth the terms and conditions on which 923 Digital, LLC agrees to develop for Client certain technology services (“Services”) and solutions, software, code, designs, wireframes, mockups, or other deliverables, and associated documentation (collectively, the “Deliverables”) described in one or more statement(s) of work attached hereto (each a “Statement of Work” or “SOW”). Additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefore are set forth on the applicable Statement of Work (which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the Agreement shall control.
Upon mutual execution hereof by the parties to this Agreement, the Agency will design, develop and code the Deliverables in accordance with the applicable SOW (each, a “Project”).
The Client will have a period of fifteen (15) calendar days after delivery of the proposed final version of the Deliverables or any corrected version thereof (the “Test Period” or “UAT”) in which to carry out acceptance testing. If the Deliverables fail to conform to the Specifications in any material respect, including any instances of crashing, minor bug fixes, or correction of erroneous text elements (a “Defect”), the Client shall notify the Agency in writing before the expiration of the Test Period and shall specify in reasonable detail all Defects observed during the Test Period. The Agency shall revise the Deliverables to correct all Defects specified during the Test Period and shall deliver the revised Deliverables to the Client. Defects raised within the Test Period shall be fixed without additional charge. This process shall be repeated until the Deliverables are accepted by the Client, provided that the Deliverables will be deemed to have been accepted by the Client upon the earliest of (i) expiration of any Test Period without notice of any Defect by the Client; or (ii) use of the Deliverables by Client in its operations or as otherwise intended in the applicable SOW. For the avoidance of doubt and without limitation, Defects covered under this Section 2.2 shall not include adding new functionality or pages, replacing large parts of an application, or any re-architecture or redesign not specified in the SOW.
The Agency will determine the method, details, and means of performing the Services and providing the Deliverables. The Client may require Agency’s personnel to observe the Client’s safety policies and building rules when on the Client’s site. Each party has the right to control its own personnel. Designation of a particular Agency individual in a SOW does not preclude the Agency’s termination or re-assignment of the individual, provided Agency replaces the individual with a person with appropriate skills.
The Agency’s estimated budget and schedule for the completion of the Project is set forth in the SOW. Such estimates shall be binding only for the period specified in the SOW. If such estimate is not accepted and countersigned by the Client within the period specified in the SOW, the estimate will immediately become non-binding and the Agency shall have the right to change any of the terms specified in such estimate, including but not limited to pricing for the Project and anticipated delivery timeframes for completion of the Deliverables. Upon execution of the SOW, the Agency will use commercially reasonable efforts to complete development of the Deliverables in accordance with such budget and schedule. The Client understands, however, that software development is subject to substantial uncertainties and agrees that the Agency will not be liable for any cost increases or delays that may occur as a result of unforeseen circumstances or delays caused by the Client due to the Client’s failure to abide by Section 5 of this Agreement.
The Client may request changes to the scope of the Project (a “Change Order”) at any time by providing written notice to the Agency. Upon such request, the Agency will prepare an estimate of (i) the costs required to complete the changes, (ii) the likely time required to implement the change, (iii) the likely effect of the change on other Services and/or Deliverables, and (iv) any other impact the change might have on the performance of the Agency under the SOW, as soon as reasonably practicable and, if agreed to by the Client, the parties shall execute an amended SOW reflecting such changes. Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with this Section 1.5 and Section 12.11.
For any SOW that includes the development of Deliverables intended to be run on the Apple® iPhone®, iPod® Touch platforms, iPad® Platform and/or any Android™ device, the following terms and conditions shall apply:
The Client hereby requests that, and authorizes the Agency to submit on the Client’s behalf, the Deliverables to the appropriate application store for review and approval, including listing of the Deliverables as an application available for purchase through the iTunes Store and/or the Android Market, as applicable. The Client shall provide all necessary authentication credentials to the Agency and the Client hereby authorizes the use of such credentials for the purpose of effecting the foregoing review and approval process. The Client shall provide to the Agency all requisite information, including pricing, product description, and similar data, necessary for Agency submission of the Deliverables to Apple and/or Google.
The Client acknowledges that the Agency makes no guarantee regarding the acceptance of the Deliverables by Apple and/or Google and that the Deliverables may be permanently rejected without recourse. The Agency agrees to make commercially reasonable efforts to modify the Deliverables in order to achieve acceptance, in accordance with the Acceptance Testing procedure set out at Section 1.2 above, however any changes to the scope of the Project, regardless of whether they are necessary to obtain approval, shall be made in accordance with the process for Change Orders set forth in Section 1.5 of this Agreement. Any final rejection of the Deliverables by Apple and/or Google shall have no effect on the Client’s obligations under this Agreement.
The Agency will provide advance notice to the Client of any third party software or tools that will be embedded in or used with the Deliverables (i) for which the Client shall be required to pay a fee, or (ii) which contain any copyleft or similar license that imposes obligations on the Client to distribute or disclose any software code or grant rights in any patents of the Client. The Agency will not use for the Deliverables any such third party software or tools to which the Client reasonably objects.
The Agency may, without the written consent of the Client, subcontract to any third party any of the Services to be provided to the Client hereunder. In the event the Agency subcontracts any of the Services to a third party service provider, the Agency shall be and remain fully responsible for any acts of such subcontractors.
Any services outside the scope of the SOW or changes to previously approved work requested by the Client shall be the subject of an additional SOW or Change Order to be approved in writing by both parties. Each such additional SOW or Change Order is hereby incorporated herein by this reference.
All Projects shall require the payment of an initial deposit upon execution of a SOW by the Client and in advance of the start of any Services or Deliverable. Compensation requirements including payment amounts, deposit requirements and due dates, shall be set forth in an applicable SOW. If this Agreement is terminated for any reason before acceptance of the Deliverables, The Client shall pay the Agency for any Services performed through the termination date, including a pro-rated amount for any partially completed fixed fee Projects.
The Client will be notified in advance for pre-approval of any additional expenses in excess of those set forth on the SOW Project fee. At the Agency’s discretion, the Client shall either pay such fees directly to the third-party vendor or reimburse the Agency therefore upon presentation of applicable invoices. The Agency shall maintain records of expenses. Where applicable, the Agency will invoice the Client for all fees related to acquisition of talent or talent services in advance and will only secure talent services upon receipt of all such fees from the Client.
The Client shall pay the Agency for the Services performed hereunder as set forth on the applicable SOW. In no event will any payment under this Agreement be contingent on receipt of any monies or other compensation by the Client from a third party. For the avoidance of doubt, fees or commissions payable to the Agency for media planning and buying services are in addition to, and not inclusive of, the Agency’s fees for other services which may be listed in the SOW, such as design, branding, hosting, and content distribution, and syndication. Delays resulting from the action or inaction of the Client may result in an adjustment in fees by the Agency, subject to the Client’s approval. Each invoice hereunder is due upon receipt and payable within a grace period of 30 calendar days after its invoice date. All rights of the Client herein are conditioned on the Agency’s receipt of full payment. In addition, the Agency may suspend performance of Services and withhold delivery of Deliverables until outstanding invoices are paid in full. The Agency shall not be liable for any damages, losses or liabilities that may arise out of the Agency’s suspension of performance and/or withholding of Services or Deliverables due to the Client’s non-payment. Late payments beyond the 30-calendar day mark shall accrue interest at the rate of 1.5% of the total project fee per month. The Agency shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.
Any fees charged by the Agency under this Agreement are exclusive of all duties and taxes imposed upon the provision of goods and services (“Taxes”). The Client shall pay all Taxes arising from this Agreement, if any, exclusive of taxes based on the Agency’s income.
In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide or maintain any necessary information and approvals that may be required by Agency (the “Client Representative”). The Client Representative shall be responsible for coordination and review of the Agency’s services and notifying the Agency of the Client instructions, Change Orders and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on the Client. If after the Client Representative has approved a design, the Client or any authorized person alters the scope of work, requires additional services, or reverses an approval, the Client shall pay all fees and expenses arising from such changes and additional services as set forth in Section 2 above.
The Agency’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. The Agency shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under this Agreement.
The Client will provide the workspaces, facilities, equipment, properly configured computers (including, hardware, software, and connectivity), and personnel described in the SOW or otherwise required by the Agency. The Agency’s timely performance of the Services and provision of the Deliverables are contingent on the Client promptly providing (i) all required resources, (ii) the necessary assistance and cooperation of the Client's officers, agents, and employees, and (iii) complete, clean, and accurate information and data. If a delay is caused by the Client's failure to timely perform any obligation or deliver a necessary resource, the delivery schedule for the Services and Deliverables shall be extended for the period of delay.
File Back-up. Unless otherwise specified in the SOW, the Client will maintain current comprehensive back-ups for all files, data, and programs that could be affected by the Services and implement procedures for recovering and reconstructing any files, data, and programs affected by the Services.
All copy provided by the Client shall be in electronic (PDF, DOC, or TXT) format suitable for typesetting. Where photographs, illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration required. The Client shall pay all fees and expenses required to bring nonconforming materials up to such standards. The Client warrants that all assets, concepts, materials, specifications, information and instructions provided by the Client or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties.
Unless otherwise stated in this Agreement or agreed by the parties in writing, the Agency’s contracts with suppliers in respect of the Services shall be made in accordance with suppliers’ standard terms or such other terms as the Agency is able to negotiate with the relevant supplier.
The Agency shall act as principal in all such contracts, but all rights and liabilities as between the Client and the Agency shall correspond to those between the Agency and the various suppliers under such conditions, including in particular any service levels and any rights of amendment, omission and cancellation. The Agency shall use reasonable efforts to procure best commercial terms for the Client, and on the Client’s written request, the Agency shall supply the Client with the relevant terms and conditions.
Notwithstanding the above, unless the parties agree to different arrangements in writing, the Agency shall negotiate with any talent or celebrities (if applicable) on behalf of the Client, but the Client shall contract with such suppliers directly in order to derive maximum benefit from the relationship.
The Client is responsible for obtaining all legal clearances required for the performance of Services hereunder. The Client shall indemnify, defend (at its own cost and expense) and hold Agency and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Client.
The Agency will use reasonable efforts to perform the Services and complete the development of the Deliverables in compliance with customary professional standards. Nonetheless, the Client understands that the Deliverables are a complex product that may contain errors or defects and that the progress and results of software development projects cannot be predicted with certainty. ACCORDINGLY, THE SOFTWARE IS PROVIDED “AS IS,” AND EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, AGENCY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Nothing contained in this Agreement shall be construed as an assurance that the Deliverables are free from errors or defects, will operate without interruption or will meet the Client’s requirements or expectations or otherwise with regard to the Deliverables and their functionality or performance.
The Client’s sole remedy in the event of any breach of this Agreement by the Agency shall be the correction of any defective Services or, at the Agency’s option, the payment of damages not to exceed the amounts paid by the Client allocable to such defective Services. The Agency shall have no monetary liability, in contract, tort or otherwise, arising out of any error or defect in the Deliverables or otherwise under or related to this Agreement, except as set forth in the foregoing sentence. In any event, the Agency’s total liability for all matters arising under or related to this Agreement, regardless of the form of action, in contract, tort or otherwise, shall not exceed the amounts paid by the Client under this Agreement. IN NO EVENT WILL THE AGENCY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF ANTICIPATED PROFITS OR BENEFITS UNDER OR RELATED TO THIS AGREEMENT. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY REMEDIES AND, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF SUCH REMEDIES, WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Each party acknowledges that, in connection with this Agreement, either party may receive Confidential Information from the other party. “Confidential Information” means any information of a party that is either (i) disclosed in writing and clearly marked as confidential and proprietary, or (ii) initially disclosed orally and designated as confidential and proprietary at the time of the initial disclosure, with written confirmation of its confidential and proprietary nature, including a description of the nature of the information so disclosed, delivered within ten (10) days after such disclosure. Notwithstanding the foregoing, information shall not be deemed Confidential Information if it:
(a) was known to the receiving party before its initial disclosure;
(b) is independently developed by a party without use or incorporation of any Confidential Information of the other party;
(c) was in the public domain at the time of its initial disclosure or later comes within the public domain other than through the acts or omissions of the receiving party;
(d) is received from a third party without breach of any obligation of confidence;
(e) is approved for release by written authorization of the disclosing party; or
(f) is disclosed by the disclosing party to one or more third parties without restriction.
Neither party shall use Confidential Information of the other party for any purpose other than the performance of its obligations under this Agreement. Each party will restrict access to Confidential Information of the other party only to those employees and subcontractors who have a need to be informed of the Confidential Information and who have executed written confidentiality agreements providing protection for the Confidential Information comparable to the protection provided herein. Each party shall exercise reasonable precautions, at least as protective as those it follows in the case of its own valuable confidential information, to protect the Confidential Information of the other party from unauthorized use or disclosure. Notwithstanding the foregoing, a party may disclose the Confidential Information of the other party if required by law or legal process, provided such party uses commercially reasonable efforts to give the other party at least forty-eight (48) hours’ notice of such required disclosure so that the other party may take actions to protect its interest in such information. The provisions of this section shall survive the termination of this Agreement for a period of five (5) years.
Neither party shall solicit the other’s employees, independent contractors or consultants or engage them in any work independent of the parties’ relationship under this Agreement during the term of the Agreement and for two (2) years thereafter.
Subject to the Agency’s receiving full payment under this Agreement, the Agency assigns to the Client, without representation or warranty, all rights, title and interest the Agency may have in any Deliverable specifically created by the Agency for the Client (and not constituting Agency Technology) pursuant to this Agreement, except that:
(a) the Agency shall have a perpetual, royalty-free license to use and display such Deliverable as part of its portfolio for promotional purposes;
(b) the Agency shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Interim Work”) which have been presented to the Client but not included in the Deliverables;
(c) the Agency shall own and retain all rights to any technology, technical documentation, inventions, algorithms, software, architecture, logic, navigation, 3D modeling files, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, files and features incorporated into or utilized by the Deliverable that is owned by the Agency or in which the Agency has an interest and which was developed prior to the commencement of the Services or independently of this Agreement and which is not based upon and does not incorporate any Confidential Information or other intellectual property rights of the Client (collectively, “Agency Technology”). Unless the parties agree otherwise in a written and signed Statement of Work, the Agency shall retain ownership of any and all Agency Technology, including any and all associated intellectual property rights. The Agency hereby grants to the Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform the AgencyTechnology, in compiled machine readable object code form only, to the extent incorporated into Deliverables provided hereunder strictly for the purposes and in the territories set out in the applicable SOW. Use of Agency Technology for any other Project, on any other website or in any other medium shall be subject to additional fees and licenses which may be granted or withheld by Agency in its sole discretion; and
(d) If the Client desires to utilize any of the Interim Work, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Client shall hire the Agency to design, create, develop, market and otherwise implement such Interim Work. The Client may solicit or hire a third party to implement such Interim Work if, and only if, the Agency declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to the Agency.
(e) Subject to the Services provided hereunder, the Agency shall retain all rights to any illustrations and other proprietary artwork, if any, listed in any SOW (each item, a “Design”), provided that the Agency shall not, without the Client’s prior written consent, use, license, sell or otherwise authorize the use of any Design for use in connection with the marketing or promotion of any consumer product, in any format or medium, electronic or otherwise, for a period of one year from date on which such Design is first published. Except as otherwise set forth in this Section 10, the Agency grants the Client the limited, exclusive, irrevocable right to use the Designs as set forth in any SOW.
The term of this Agreement commences on the effective date of the SOW and continues until the date the Agreement is terminated as provided below. Termination of an SOW will not terminate the entire Agreement unless so stated in the termination notice.
Either party may terminate this Agreement for any reason upon giving 30 days’ prior written notice to the other.
Upon termination of this Agreement by the Client without the Agency’s fault or consent (or not at the end of a project milestone juncture), the Client shall pay the Agency, in addition to all of the fees earned by Agency pursuant to the terms hereof, an early termination fee equal to 10% of the total Project fee, plus any and all expenses and third-party costs reasonably incurred by the Agency through the effective date of termination. The Client shall receive the Deliverables that have been completed to the date of termination and belonging to a preceding milestone. The Agency has no obligation to continue a Project once it has received a notice of termination, nor is the Client obligated to continue working with the Agency.
11.1.b Service or Retained Team Contracts
Either party may terminate this Agreement for any reason upon giving 10 days’ prior written notice before the beginning of the monthly renewal of the contract as defined by the SOW, to the other party.
Upon termination of this Agreement by the Client without the Agency’s fault or consent, the Client shall pay the Agency, in addition to all of the fees earned by the Agency pursuant to the terms hereof, for the remainder of the current month as defined by the SOW, plus any and all expenses and third-party costs reasonably incurred by Agency through the effective date of termination. The Client shall receive the Deliverables that have been completed to the date of notice and belonging to a preceding milestone. The Agency has no obligation to continue a Project once it has received a notice of termination, nor is the Client obligated to continue working with the Agency.
At the Agency’s election, the Client’s delay of work under this Agreement for a cumulative period of more than 30 days without the Agency’s fault or consent shall be considered a termination of this Agreement by the Client within the meaning of the Section 11.1.
Without prejudice to any other rights or remedies, either party may immediately terminate this Agreement if the other party:
Termination by Client without providing the foregoing notice and cure period shall be considered “termination without Agency’s fault” as described in Section 11.1.
The relationship of the parties hereto shall be that of independent contractors. Neither party shall have any power or right, as agent or otherwise, to bind the other party in any matter or thing. Nothing herein shall be construed to create any partnership, joint venture or similar relationship, or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated herein.
Neither party may assign, delegate or otherwise transfer this Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. This Agreement shall be binding upon the parties and any successors and assigns permitted by this Section 12.2.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision of this Agreement.
Neither party shall be responsible for any delay or failure in performance, except with regard to payment obligations, resulting from acts beyond the control of such party. Such acts shall include but shall not be limited to: acts of God, acts of war, riots, epidemics, fire, flood or other disasters, acts of government and strikes or lock outs.
There are no third party beneficiaries to this Agreement.
This Agreement and all matters arising from or relating to this Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its provisions regarding the choice or conflict of laws. Any suit hereunder will be brought solely in the federal or state courts in Boston, Massachusetts and the Client hereby submits to the personal jurisdiction thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded in its entirety from application to this Agreement.
Before initiating legal action against the other party relating to a dispute herein, the parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. To this end, either party may request that each party designate an officer or other management employee with authority to bind such party to meet to resolve the dispute or claim. If the dispute is not resolved within 30 days of the commencement of informal efforts under this Section 12.6, either party may pursue formal legal action. This Section will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a party from pursuing injunctive or other equitable relief to which it may be entitled.
No legal action, regardless of its form, related to or arising out of this Agreement may be brought by either party more than one (1) year after the cause of action first accrued.
All notices under this Agreement shall be in writing and shall be considered to have been duly given or served when personally delivered to the receiving party by hand, fax, email or comparable means to the respective addresses set forth below or to such other address as any party may hereafter designate by written notice to the other party.
The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms shall remain in force. Further, the term or condition which is held to be illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.
The parties hereto agree that the Statement(s) of Work form a part of this Agreement and that this Agreement, including the Statement(s) of Work, represents the complete and exclusive statement of the Agreement between the parties, and supersedes all prior proposals and understandings, oral or written, relating to the subject matter of this Agreement. In the event of a conflict between this Agreement and the Statement of Work, the terms and conditions of this Agreement shall control.
This Agreement may be amended only by a writing executed on behalf of the parties hereto by their duly authorized representatives.
All terms and provisions of this Agreement that should by their nature survive the termination of this Agreement shall so survive.
Client agrees to comply with all applicable laws and is responsible, at its sole cost and expense, for obtaining any and all governmental licenses and approvals that may be required in connection with this Agreement.
This Agreement and any SOWs hereto may be executed in counterparts, each of which shall be deemed an original and which shall together constitute one instrument. Signatures transmitted by facsimile or electronically via PDF or similar file delivery method shall have the same effect as an original signature.