THIS MASTER SERVICES AGREEMENT (“Agreement”) is entered into by and between Elevation Group, LLC (the “Company”) and the Client named in the related Proposal, Statement of Work and/or Order Form, which is incorporated herein by reference and made a part hereof (the “Order”). The Order shall include and incorporate any subsequent Change Orders requested by Client and accepted by Company and shall apply to all Services ordered by Client and performed by Company. The Order and any Change Orders shall collectively be referred to as the “Order” unless individually identified herein.
PLEASE READ THIS AGREEMENT CAREFULLY.
BY CLICKING “I ACCEPT” OR OTHERWISE ACCESSING OR USING THE SERVICES DEFINED HEREIN, YOU ARE CREATING A CONTRACT BETWEEN THE COMPANY AND CLIENT, CONSISTING OF (i) THE ORDER, (ii) THE APPLICABLE DESCRIPTION OF THE SERVICES SET FORTH IN THE ORDER, AND (iii) THIS AGREEMENT, AND AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICIES. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
WHEREAS, the Company is engaged in the business of the design and implementation of Internet web sites, search engine optimization, search engine marketing, maintenance and website hosting; and
WHEREAS, Client desires to engage the Company to provide to the Client the services as set forth in one or more Orders (the “Services”).
NOW THEREFORE, the Company and Client agree as follows:
1. Term and Termination.
A. Term of Agreement. This Agreement shall be effective as of the date Client accepts and electronically signs this Agreement (the “Effective Date”) and shall remain in force until (i) the Subscription Term set forth in the Order ends, (ii) until all Services have been completed by the Company as set forth in the applicable Order and/or (iii) through the date of termination as provided in this Agreement.
B. Term of Subscriptions (subscription-based services only). Subscriptions to the Services commence on the Effective Date and continue for the Subscription Term specified in the applicable Order or as otherwise provided in this Agreement. Unless otherwise set forth in an Order, subscriptions shall automatically renew for additional periods of one (1) year for the fees set forth in the applicable Order unless either party give the other party notice of non-renewal at least thirty (30) days prior to the then current Subscription Term. For the purposes hereof, (i) the term “Start Date” means the date on which the Company shall make the Services available to Client as set forth in the applicable Order; and (ii) the term “Subscription Term” means the subscription period set for in the applicable Order.
C. Termination. This Agreement may be terminated (i) upon the written consent of both the Client and the Company; (ii) immediately by either party upon written notice of termination to the other if a party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of written notice of such breach; (iii) immediately by the Company if Client fails to pay any fees hereunder on the due date; (iv) by the Company upon fifteen (15) days’ prior written notice to Client for convenience or if Client fails to cooperate with the Company or hinders the Company’s ability to perform the Services hereunder.
D. Effect of Termination. Upon termination of this Agreement, Client agrees to pay the Company for all Services performed up to the date of termination, together with any cancellation fees as set forth in Section 3(c) hereof and Company agrees to provide and deliver to Client all work performed for Client and paid for by Client through the date of termination. In the event that the Client terminates the Agreement for a breach by the Company, the Company shall provide a pro rata refund for any prepaid services not performed by Company.
2.The Company and Client’s Responsibilities.
A. Scope of Work. The Company agrees to perform the Services as set forth in the Order.
B. Change Orders. Should Client request the Company to perform services or tasks that are not provided within the terms of this Agreement or the Order, the Company will immediately notify the Client and the Company will issue a change order setting for the requested work (“Change Order”). Change Orders may be subject to additional fees. In such a case, the Company will provide Client with a written time and cost estimate for the additional work for their review. The Company will not perform any additional work not covered by the terms of this Agreement or the Change Order without receiving written approval to proceed. Change Orders shall become effective only when accepted and electronically executed by the Client and the Company. The Company agrees to notify Client promptly of any factor, occurrence, or event coming to its attention that may affect the Company’s ability to meet the requirements of this Agreement, or that is likely to result in any material delay in the delivery of the Services set forth in the Change Order. In the event of a conflict between the terms of this Agreement and a Change Order, the terms of this Agreement shall govern.
C. Client’s Responsibilities. Client agrees to perform all tasks assigned to Client as set forth in the Order, this Agreement or any Change Order, and to provide all assistance and cooperation to the Company in order to complete the Services. The Company shall not be deemed to be in breach of this Agreement, or a Change Order if Client fails to meet its responsibilities and time schedules as set forth in the Order, this Agreement or a Change Order and/or as a result of a delay by Client in providing Company with the requested information required by Company to provide the Services as set forth in the Order, this Agreement or a Change Order. In order to complete Client’s project in a timely fashion or to provide ongoing Services as set forth in the Order, the Company has allocated personnel to perform work at scheduled times in accordance with a project timeline or requirements as set forth in the Order. In the event Client fails to deliver content, information, images, directional notes, approvals or other required information to the Company by the dates specified in the Order, all subsequent deadlines and project milestones will be postponed accordingly (see section 2E, “Project Dormancy”). Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support the completion of the Services. Unless otherwise contracted with the Company or reflected in a Change Order, Client shall be responsible for initially populating and then maintaining any databases on its website as well as providing all content for the website. With the execution of a Change Order specifically asking the Company to assess the Client’s systems, software and hardware from time to time, the Company may agree to perform this function at normal Company rates. To the extent the Services include the development of a website by the Company for Client, until Client has approved the final website, none of the web pages for Client’s website will be accessible to end users. Upon approval of the final website by Client, the website will become accessible to end users, and such approval shall be deemed a representation by Client that the website content, layout, look, and feel is accurate. Any request for changes after approval will be at the Company’s normal hourly rates. Any third-party software installed on behalf of Client by Company must be licensed and maintained solely by Client after the initial term indicated in the contract Statement of Work.
D. Resource Allocation Fee. Your total project costs include a monthly assessment of 2.5% of the total project cost or otherwise defined in the proposal, up to a maximum value of $1000, to keep all the necessary agency resources (project management labor, development server fees, and software license fees) assigned to your project for the estimated project duration stipulated in the proposal. In the event that project completion is delayed due to circumstances beyond Elevation’s control, and barring any Force Majeure exception, this fee will be assessed on a monthly basis until successful project completion. Said fees will be charged automatically for credit card payments, or invoiced separately for all other forms of payment. In the event that one or more key “Milestone” deliverables (as indicated by the Project Manager at project outset) are delayed by more than 2 weeks by the Elevation team, this fee will be waived during the month where the breach occurred. Reference clauses 1C, 2C, and 12 for further details on Client protections in the case of a Company breach.
E. Project Dormancy. In the case of repeated delays in the Client providing responses and feedback requested by the Project Manager, the overall timeline for the project will be impacted and the initially communicated milestone / launch dates rendered null and void. Updated milestone / launch dates will be provided in a timely manner upon Client return to active status and are subject to further delays caused by the need for key resource reallocation.
The assigned Project Manager will make a reasonable effort to notify the Client before placing a project on hold due to unresponsiveness, sending no less than two (2) reminders during any 30-day period of Client inactivity. If a project is placed on hold due to inactivity:
- Any and all team resources (including Project Manager, Graphic/UX Designer, assigned consultants, etc) are subject to reassignment.
- All project-related files will be archived within Company’s project management software.
- A project restart fee of 2.5% of the total project value up to a maximum of $1000 will be assessed per restart to introduce the project to newly-assigned team resources, and the project will be subject to a 10-day restart period to allow for key resource reallocation and training.
- The Resource Allocation Fee will continue to be assessed during the dormancy period.
If subsequent delays result in a cumulative on-hold duration of more than six (6) months stemming from either a single or multiple hold periods, or if Client delays cause the timeline to extend more than six (6) months, final payment will be due, billed by the hour (not by the project), for all work completed to date and the applicable Services will be canceled.
F. Process Alteration Fees. Our ability to produce the deliverables as described in the Statement of Work section of this proposal relies on adherence to our standard process and toolset. Any action on the part of the Client that acts to alter said process or toolset may incur additional fees, including requests for phone/video call time in excess of hourly limits presented in the Statement of Work or call requests with less than 24 hours advance notice. A detailed estimate of these fees will be provided for approval before costs are incurred.
G. Client Representative. Client will provide one (1) representative from the Client side who will communicate with the Company to streamline the process and prevent miscommunication. In the event that the Client changes their designated representative, the Company must be notified in writing of the change, and all prior approvals up to the representative change shall remain valid. Subsequent edits and changes to previously approved work will be subject to a Change Order and billed at the Company’s standard hourly rate of $150 per hour. Any change of the project Main Point of Contact will result in a $200 project reintroduction fee and delay the overall project timeline.
H. Client Communication and Project Management. In order to avoid miscommunication, Client will provide all edits, approvals and requests to the Company in writing, via the company’s elected project communication platform, before implementation. If Client wishes to review edits via phone after they are emailed by the Company to the Client, a time will be confirmed in advance. In the event Client communication with the Company is trending towards exceeding the allocated management time, the Company shall notify Client in advance and upon written confirmation from Client, Company bill such additional time at the standard hourly rate of $150 per hour. Additionally, the Company will provide Client with updates via email and phone as work progresses at regularly scheduled times. The personnel assigned to perform the Services shall be determined solely by the Company and the Company may use subcontractors or consultants to perform the Services.
I. Client Materials and Content Indemnification. Client shall retain ownership of all content and materials provided to the Company. Client takes full responsibility for any content (including, without limitation, any graphics, audio, copy text, video, images, and trademarks) provided to the Company to be used in this project. Client represents and warrants that it has full rights to use all content and materials provided to the Company (“Client Content”). Client covenants and agrees that the Client Content shall not include any names of, or any medical or health-related information related to, any patient of the Client; provided, however, that Client may post testimonials with the patient’s express consent. Client shall defend, indemnify and hold harmless the Company and its officers, directors, employees and agents, from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, expenses (including all reasonable attorneys’ and paralegals’ fees on account thereof) relating to, resulting from, or in connection with any claims related to the Client Content, Client’s and its users’ use of Client Content or Client work-product, Client’s modification to the Company’s content or Client work-product, or any data or information supplied by Client to the Company in connection with the Client work-product, including, without limitation, any claim for breach of warranty, libel, slander, invasion of privacy, false advertising, claims of copyright infringement, patent infringement, trademark infringement or dilution, misappropriation of trade secrets, loss of data and information, defamation, harassment, or fraud, injuries, including death to persons or damage to property, theft and emotional distress.
J. Hosting Services. In the event that Client chooses a subscription that includes hosting services, Client acknowledges and agrees to the following: (i) that all hosting services are provided to Client by either WP Engine, Inc. (“WP Engine”) or Pressable (“Pressable”), which are third party service providers of the Company, (ii) Client agrees to be bound by all of the terms and conditions set forth in WP Engines or Pressable’s’:
-Terms of Service: https://wpengine.com/legal/terms-of-service/ or- https://pressable.com/legal/terms-of-service/; as applicable, and
-Service Level Agreement: https://wpengine.com/legal/sla/; or https://pressable.com/legal/sla/; as applicable and
-Acceptable Use Policy/Site Guidelines:
https://wpengine.com/legal/aup/ -OR- https://pressable.com/legal/site-guidelines/ as applicable,
which are incorporated into this Agreement by reference; and (iii) that all issues, complaints and/or concerns of Client associated with the hosting services, including, without limitation any outages or downtime, shall be directed solely to the applicable hosting provider and not to the Company. Client may contact the appropriate hosting provider as follows: https://wpengine.com/contact/ or by logging in to https://my.pressable.com/ as applicable.
K.HIPAA Disclaimer. Client understands, acknowledges and agrees that (i) the Company is not HIPAA compliant, (ii) Client is solely responsible for any and all applicable compliance with federal and/or state laws governing the privacy and security of personal data, including, without limitation, any past, present or future physical or mental health information of any individual or other sensitive data (“Health Information”), (iii) the Services are not appropriate for the storage of, or control of access to, any Health Information, and (iv) the Company does not control or monitor the information or data Client stores on, or transmit through, the Services or its website. The Company specifically disclaims any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Clients requiring secure storage of Health Information, including “protected health information” as defined under HIPAA, are expressly prohibited from using the Services or its website for such purposes. Storing and permitting access to any Health Information, including any “protected health information,” as defined under HIPAA, is a material violation of this Agreement, and grounds for immediate termination by the Company. Client acknowledges and agrees that (i) the Company does not sign “Business Associate Agreements” and (ii) the Company is not a Business Associate or subcontractor or agent of Client pursuant to or in accordance with HIPAA.
L. Third Party Policies and Actions. Client understands, acknowledges and agrees that (i) the Company has no control over the policies and actions of any third party, including, without limitation, search engines and directories, and (ii) the Company shall not be responsible for any third party’s policies or actions in any manner whatsoever regardless of whether or not the Company has recommended such third party’s products or services. Client further understands and agrees that it is not required to utilize the products or services of any Company recommended third party and the decision to use such party rests solely with Client.
3. Fees; Payment Terms; Taxes.
A. Fees. Client will pay the Company for the Services according to the terms set forth in the Order. Unless otherwise required by the Order, all fees must be received by the Client prior to the commencement of the Services or as set forth in the Order. Client will be responsible to pay the expenses of any resources they request that the Company purchase, such as stock photos, videos, audio files, third party licenses or other media assets. Client may choose to purchase these items directly and provide them to the Company for use on their project. Client will reimburse the Company for any additional expenses including travel, copying, duplicating, shipping, and postage. All expenses over $250.00 will be approved in writing by Client prior to purchase. In the event that client chooses a subscription-based service the company will be authorized to charge the credit card on file.
B. Invoices; Past Due Account. Invoices are due upon receipt, unless otherwise set forth in the Order. Any invoices that are more than thirty (30) days past due will be subject to a 1.5% finance charge accrued per month on the outstanding balance. Client agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees, court costs and other expenses of collection resulting from any default by Client in any of the terms hereof.
C. NO REFUNDS; CANCELLATION FEES. CLIENT FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CLIENT, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER, EXCEPT AS SET FORTH IN SECTION 1(D) OF THIS AGREEMENT. CLIENT AGREES TO PAY UPON CANCELLATION OR TERMINATION OF THIS AGREEMENT OR ANY ORDER, THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO THE COMPANY AS PROVIDED IN THE ORDER.
D. Taxes. Unless otherwise stated in the Order, the Company’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on the Company’s net income or property. If the Company has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Ownership of Intellectual Property.
A. Client Intellectual Property. Aside from derivative works or inventions based on Company’s pre-existing ideas, skills, tools, processes or techniques that are created in conjunction with the provision of the Services and which are subject to this section and thereby are assignable to Client, Company will retain the right to all of its ideas, skills, tools, processes and techniques possessed by Company prior to the Effective Date of this Agreement. Other than as set forth above, all work performed by the Company for the Client will become the property of the Client upon full payment of all amounts due and owing; provided, however, the Company may also retain ownership of certain source code, in which case the Client is granted a non-revocable, non-exclusive, worldwide, royalty free license to use such source code owned by the Company. Additionally, the Client’s work may contain software and other property licensed by third parties, in such event the terms of such third party license shall control. Client shall be responsible for researching, obtaining, and filing all trademark, copyright, patent, or other intellectual property protections for the Client content, its look and feel, any logos, any “tag lines,” or any other materials or documentation designed or developed by the Company for Client. Client agrees that the Company may display Client work product and Client’s name and logo in the Company’s portfolio, client list and marketing materials.
B. Company Intellectual Property. The Company is the owner, licensee or sublicense of various pre-existing development tools, routines, subroutines and/or other programs, data, and materials that the Company may use or implement in the development of the Services (“Background Technology”). The Company retains all right, title and interest in and to the Background Technology, and hereby grants Client a non-exclusive license to use the Background Technology only to the extent necessary to complete the Services. Client is not authorized to sell or license any Background Technology or rights thereto to any other person or firm.
5. Confidential Information.
A. Client Information. All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by the Company and will not be disclosed or used by the Company except to the extent that such disclosure or use is reasonably necessary to the performance of the Services.
B. Company Information. All information relating to the Company that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement.
C. Survival. These obligations of confidentiality will survive the termination of this Agreement but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.
6. Warranty and Disclaimer.
The Company warrants that the Services will be provided in a workmanlike manner, and in conformity with generally prevailing industry standards. The Company guarantees that the source code, if any, provided as part of the Services will be free of bugs and errors due to workmanship for a period of thirty (30) days (“Warranty Period”). This guarantee will be waived if the Client requests FTP (source code of the site) access to the site server. FTP access will not be granted to the Client upon receipt of full payment for the balance of the Agreement and all Orders. The Warranty Period is valid only for projects which are hosted and uploaded to the live servers by the Company. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CLIENT’S EXPECTATIONS OR REQUIREMENTS AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, THE COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT ANY OTHER WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY THE COMPANY, AND (B) THE COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, ANY ORDER OR ANY CHANGE ORDER. THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY WEBSITES, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
7. Limitation of Liability.
The liability of the Company for any reason and for any cause of action whatsoever in connection with this Agreement, any Order, any Change Orders, with respect to the Services, or any action taken by or behalf of any third party, regardless of the form of action, whether in contract or in tort, including negligence, shall be limited to the amount of money received by the Company from Client pursuant to any Order, any Change Order or this Agreement during the term during which such any potential damages or liability arose. The Company shall not be liable to Client or any third party under this Agreement or in connection with the use of or performance of the Services for (i) any losses or damages to Client or any third party as a result of Malicious Code introduced by Client or any third party at any time, (ii) any loss of Client or third-party data or information, or (iii) any lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether the Company has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. For the purposes hereof, “Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or destructive code, files, scripts, agents or programs.
8. Relation of Parties.
The performance by the Company of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between the Company and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
10. Mediation; Dispute Resolution; Governing Law; Jurisdiction; Waiver of Jury Trial.
If any dispute or claim shall arise out of this Agreement and the dispute is not settled by the parties within a fifteen (15) day period, the parties agree to mediation with a mutually agreed upon mediator. If the parties are not able to agree on a mediator, each will appoint a mediator. These two mediators will choose a third mediator to execute the mediation. The parties shall equally divide the costs of the mediation regardless of the result of the mediation. In the event that the matter is not resolved at mediation, the parties agree that this Agreement shall be governed by the laws of the State of Florida, without giving effect to the conflict of laws and rules thereto, and venue shall lie in Miami-Dade or Broward County, Florida and the parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to either party. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
12. Force Majeure.
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy; provided, however, that the delayed party will resume performance as soon as reasonably practicable.
13. No Waiver.
The terms in this Agreement may not be modified or waived except in writing. A waiver of any provision of the agreement by a party will only apply to the occurrence involved and will not be construed as a continuing waiver. Failure or delay by a party to enforce this agreement will not be construed as a waiver.
This Agreement together with the Order, any attachments referred to herein and/or in the Order, and/or the Change Orders, if any, constitute the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations, warranties or covenants not specifically stated herein and that, except as otherwise specifically set forth in this Agreement, the Order, or any Change Order, the Company is not making any representations, warranties or covenants with respect to the Services.
15.Read and Understood; Electronic Signature.
By selecting the “I Accept” button, or otherwise accessing or using the Services defined herein, Client acknowledges and agrees that it (i) has read and understood this Agreement, (ii) it has read and understood the Terms of Service, Service Level Agreement and Acceptable Use Policy/Site Guidelines of WP Engine (“WP Engine Terms and Conditions”) or Pressable (“Pressable Terms and Conditions”) as applicable, (iii) is signing this Agreement electronically, (iv) agrees that its electronic signature is the legal equivalent of its manual signature on this Agreement, all Orders and all Change Orders, if any, and (v) consents to be legally bound by the terms and conditions of this Agreement, all Orders and all Change Orders, if any , and the WP Engine or Pressable Terms and Conditions.