MASTER SERVICE AGREEMENT
LAST UPDATED ON FEBRUARY 18, 2019
The purpose of this Master Service Agreement is to set clear expectations for working relationships between Cln agency, llc and our clients.
I. Agreeing Parties
This Master Service Agreement (“MSA” or “Agreement”) is made and entered into by and between:
Cln agency, llc (“cln agency")
(1) Subsidiaries and Partners
This shall be the Agreement under which cln agency shall conduct business with Client, including covering any work activities its subsidiaries and third-party contractors and subcontractors perform for Client.
III. Term and Termination
This Agreement will become effective on the date first shown above and will continue in effect through the completion of each statement of work (SOW), as described in separate attachments issued from time to time as circumstances require.
(2) Termination of SOWs
Client may, at its sole option and for any reason whatsoever, terminate an SOW any time by issuing written notice to Cln agency. Said termination shall become effective immediately upon Cln agency’s receipt of said written notice. Upon receipt of such notice, Cln agency shall: (a) immediately cease all work with respect to said SOW, (b) advise Client in writing of the extent to which it has completed the Deliverable(s) described in said SOW , and (c) collect and deliver to Client all work product and Deliverable(s) then completed in such manner as the Client may request, subject to Client first paying Cln agency in full for all work performed through the date of termination.
In the event of any termination of this Agreement, Article VI of this Agreement shall survive and continue in effect as described therein or, if not described, shall survive and continue in effect in perpetuity.
IV. Independent Status
(1) Intention of Parties
It is the intention of the Agreeing Parties that Cln agency be an independent contractor and not be an employee, joint venturer, or partner of Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either Cln agency or any independent contractor affiliated with Cln agency by nature of this Agreement.
(2) Mutual Non-exclusivity
Cln agency shall retain the right to perform work for others during the term of this Agreement. Client shall retain the right to cause work of the same or different kind to be performed by its own personnel or other contractors during the term of this Agreement.
V. Services Performed
(1) Statements of Work
All work performed by Cln agency shall be documented in one or more SOWs governed by this Agreement, each to be signed by at least one (1) authorized representative of Client. Each SOW shall set forth, at a minimum: goals, the term during which the SOW is to be in force and the work described therein completed, the fees associated with said work, and the terms of payment of said fees. Each Agreeing Party shall have the right to accept or decline each proposed SOW. In the event there is a conflict between any SOW and this Agreement, the terms of this Agreement shall prevail.
(2) Support & Warranty
Cln agency warrants that the Deliverable(s), at the date of delivery: (a) will perform its intended functions without material errors; (b) will conform to all written specifications and representations mutually agreed upon between Cln agency and Client as they pertain to the Deliverable(s), and (c) will be free from software viruses.
For a period commencing on the effective date of this Agreement and ending ten (10) days after the end of the term of the given SOW or upon termination by Client as specified in section II.2, Cln agency will provide support to Client at no additional cost to Client. Such support will include and be limited to: promptly fixing bugs or other errors or defects (collectively, “Defects”) in the Deliverable(s) as Defects arise. Should the Defect arise due to third-party software and/or hardware failure outside the control of Cln agency, Cln agency shall direct Client to consult with external support channels or resources, for which Cln agency shall have no liability for advice given to Client through said channels and/or resources nor any damages whatsoever that may arise as a result of Client implementing advice gained from said channels and/or resources.
(1) Rates and Payment Terms
The current schedule of fees for work performed by Cln agency and the payment terms that apply to said rates shall be set forth as part of each SOW. Each SOW will include an estimate of total fees, scope, and payment terms.
(2) Late Payment and Work Pause
Payment by Client is due consistent with the payment terms reflected on each invoice Cln agency issues to Client. If payment is not received within ten (10) days from the invoice due date, Cln agency may cause all work performed for Client to be paused until payment is received and cleared by Cln agency’s bank of choice.
Except as otherwise agreed in this Agreement or an applicable SOW, Cln agency shall be responsible for costs and expenses incidental to the performance of services for Client. The aforementioned notwithstanding, Client shall be responsible for all costs and expenses related to Cln agency’s efforts (including but not necessarily limited to travel, lodging, per diem, content acquisition costs, printing costs, software subscriptions, licenses, hosting, etc.) incurred on behalf of Client when required for performance of each SOW, unless otherwise specified by the SOW. Cln agency will receive written approval from Client for travel and lodging in advance of incurring such costs and agrees to follow Client’s travel and lodging policy for such expenses. Furthermore, Cln agency will receive Client’s advance, written approval for any individual expenditure exceeding one hundred dollars ($100.00) for which Client would be responsible.
VII. Intellectual Property and Confidential Information
The parties agree to maintain confidentiality with respect to each party’s confidential information (“Confidential Information”). For purposes of this Article VI.1., Confidential Information shall include: all information or material that has or could have commercial value or other utility in the business in which the disclosing party is engaged. If Confidential Information is in written form, the disclosing party shall label or stamp the materials with the word "Confidential" or some similar warning. If Confidential Information is transmitted orally, the disclosing party shall promptly provide a writing indicating that such oral communication constituted Confidential Information.
The receiving party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the receiving party; (b) discovered or created by the receiving party before disclosure by disclosing party; (c) learned by the receiving party through legitimate means other than from the disclosing party or disclosing party's representatives; or (d) is disclosed by receiving party with disclosing party's prior written approval.
With respect to the obligations of the receiving party hereunder, the receiving party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the disclosing party. The receiving party shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. The receiving party shall not, without prior written approval of the disclosing party, use for the receiving party's own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the disclosing party, any Confidential Information. The receiving party shall return to the disclosing party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if the disclosing party requests it in writing.
The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and the receiving party's duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until the disclosing party sends the receiving party written notice releasing the receiving party from this Agreement, whichever occurs first.
(2) Ownership of Deliverables
Cln agency shall retain all rights, title, and interest in and to technology which it has developed independently, and as part of this Agreement or any applicable SOW (hereinafter referred to as "Cln agency's Technology") so long as that Cln agency grants Client a non-exclusive right and license to make, have made, use, and sell Cln agency's Technology provided that it is used in conjunction with the initial intent of the SOW wherein which the work was originally described. This licensing Agreement is limited to the specific application of the development specified in this Agreement or any applicable SOW.
(3) Residual Rights of Personnel
Notwithstanding anything to the contrary herein, Cln agency and its personnel shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any assignment or SOW, so long as it or they acquire and apply such information without disclosure of any confidential or proprietary information of Client and without any unauthorized use or disclosure of Work Product or Deliverables.
(4) Cln agency Intellectual Property
Cln agency’s website domains, the Cln agency logo, and all intellectual property and property rights in the foregoing are owned by Cln agency, including without limitation trademarks, service marks, patents, copyrights and trade secrets in the foregoing and are and shall remain the exclusive property of Cln agency.
Cln agency reserves the right to showcase its relationship with the Client and the Work Product in its own marketing or sales efforts, either online or in printed materials, unless otherwise requested by the Client.
EXCEPT AS SPECIFIED IN SECTION IV.7, CLN AGENCY DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITS PERSONNEL, WHETHER EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS OF CLN AGENCY, OR THE RESULTS OBTAINED FROM THEIR WORK, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED OR EXPLICIT. IN NO EVENT SHALL CLN AGENCY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, OR FOR ACTS OF NEGLIGENCE THAT ARE NOT INTENTIONAL OR RECKLESS IN NATURE, REGARDLESS OF WHETHER CLN AGENCY PERSONNEL, AS DEFINED IN THIS ARTICLE VII. HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(2) Total Liability
Each party agrees that the other party’s liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid by Client for services under the applicable estimate or in the authorization for the particular service under that SOW if no estimate is provided.
(3) Force Majeure
Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, strikes or labor disputes, embargoes, government orders or any other force majeure event.
Any notices to be given hereunder by either party to the other may be effected by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses of the Agreeing Parties. However, each party may change such address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two days after mailing.
(2) Entire Agreement
This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services by Cln agency for Client and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, that are not embodied herein, and that no other agreement, statement, or promise not contained in this agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by both parties.
(3) Partial Invalidity
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
(4) Parties in Interest
This Agreement is enforceable by Client and Cln agency. The terms of this Agreement are not a contract or assurance regarding compensation, continued employment, or benefit of any kind to any of Cln agency’s personnel, to include employees, contractors, or subcontractors, or any beneficiary of same, and no such personnel or any beneficiary thereof, shall be a third-party beneficiary under or pursuant to the terms of this Agreement.
(5) Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of Arizona.
As the exclusive means of resolving through adversarial dispute resolution any disputes arising out of this Agreement, including any SOW agreed to by Client in connection with this Agreement, a party may demand that any such dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each party hereby consents to any such disputes being submitted and so resolved in Phoenix, AZ. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction.
This Agreement shall inure to the benefit of, and be binding upon, Client and Cln agency, their successors and assigns.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
(9) Mutual Indemnification
Subject to the limitations set forth in this Article VII.9. and unless otherwise specified in a given Article(s) of this Agreement, each party agrees to indemnify and save harmless the other party from and against any and all losses, liabilities, expenses (including, without limitation, reasonable fees and disbursements of counsel), claims, liens, damages or other obligations whatsoever (collectively, "Claims") that may actually and reasonably be payable by virtue of or which may actually and reasonably result from the inaccuracy of any of their respective representations or the breach of any of their respective warranties, covenants or agreements made in this Agreement or in any certificate, schedule or other instrument delivered pursuant to this Agreement; provided, however, that no claim for indemnity may be made hereunder if the facts giving rise to such Claim were in writing and known to the party seeking indemnification hereunder, such facts constituted a breach of the conditions to closing of the party seeking indemnification and the party seeking indemnification elected in any event to consummate the transactions contemplated by this Agreement. In addition, to the extent that applicable insurance coverage is available and paid to the party seeking indemnification hereunder with respect to the Claim for which indemnification is being sought, such amounts of insurance actually paid shall be deducted from the amount of the Claim for which indemnification may be sought hereunder and the indemnified party may recover only the amount of the loss actually suffered by the party to be indemnified. To the extent that such insurance payment is received subsequent to payment by the indemnifying party hereunder, the indemnified party shall reimburse the indemnifying party, up to the amount previously paid by the indemnifying party, for the amount of such insurance payment.