Master Services Agreement
This Master Service Agreement (“Agreement”) governs all Marketing Agreements between Revity LLC (“Company”) and its Partners. Subject to the limitations of applicable law, the Agreement may be updated from time to time by the Company. Written notice of these changes will be mailed or electronically delivered.
- Purpose of Agreement
This Agreement outlines the terms for the Company to provide marketing services as requested by the Partner. Services may include one-time projects or ongoing services defined in individual Statements of Work (“SOWs”). All SOWs adhere to the terms of this Agreement, with scope and pricing determined on a project-by-project basis.
- Scope of Services
The Company offers a suite of marketing services, deploying resources as needed to serve the Partner best. When the Partner requests services, the Company may issue an SOW. SOWs have start and end dates for projects and may be declined by the Company. Deliverables exclude Company Proprietary Information. The Partner must ensure marketing compliance with applicable laws and regulations.
- Terms in Agreement and SOW
The Agreement and SOW may include the following:
a) Project Services: A description of the requested scope of work and the Services that the Company agrees to provide to the Partner, along with a description of items or services that may be excluded from the project.
b) Information Required: Information that the Partner is required to provide for the Project Services. The Company may request additional information throughout the Project Services, and the Partner agrees to provide such information promptly.
c) Limited Project: A project with a set start and end date.
Recurring Project: A project that continues until terminated by the Partner.
i. Termination Procedures: The process for terminating a Recurring Project. If the SOW is silent on termination procedures, the Partner must give the Company at least 30 days’ notice to terminate the Recurring Project.
d) Project Start and End Dates: The dates a project begins and ends, as applicable.
e) Project Price: The fees and compensation owed by the Partner to the Company for the Project Services. The Project Price may be designated as an “estimate” by the Company, and the Partner agrees to pay the full Project Price once they receive the invoice detailing it.
f) Deposit: An upfront payment, if any, is required to begin the Project Services.
g) Payment Terms: The payment schedule is applicable to the Project Services. If an SOW is silent on Payment Terms, full payment of the Contract Price is due net 15 days after the invoice is received by the Partner for Limited Projects, and the amount invoiced by the Company is due net 3 days after the invoice is received by the Partner for Recurring Projects.
h) Deliverables: The types and formats of the final product or service provided by the Company. If an SOW is silent on these terms, the Deliverable shall be furnished to the Partner within 72 hours of final payment for the Project Services and shall be in the most commonly used format by the Company for that type of Project Service.
i) Travel and Associated Expenses: Anticipated travel and associated costs. If travel needs arise during Project Services, the Company may update the SOW to reflect such needs. The Partner agrees to reimburse the Company accordingly, even if such travel was not initially listed in the SOW.
j) Pause: A temporary period during which the Company performs no work for the Partner, and the Partner is not charged. This period suspends the Term of the Agreement, which resumes after the Pause period has ended.
k) Buy-Out: The Partner can terminate the contract by paying 50% of its remaining value. The Agreement will terminate upon the Company receiving this payment. The Company may move this Agreement into Buy-Out if the Partner fails to pay three consecutive monthly payments on time or at the end of a Pause period.
l) Work Product: Digital and physical assets created by the Company on behalf of the Partner, including but not limited to videos, brochure designs, various graphically and digitally designed images, advertisements, email designs, web designs, and logos.
m) Marketing Agreement is the agreement signed by the Partner to agree to marketing services. The Marketing Agreement may utilize electronic signatures.
n) Agreement Addendum is an addendum to the SOW. If an Agreement Addendum is needed, it will be clearly marked on the SOW. Any agreements, modifications, or terms mentioned in an Agreement Addendum will supersede conflicting provisions in this Agreement.
Terms in Section 3 apply to individual projects if specified in the SOW. The Agreement takes precedence over conflicting SOW terms.
- Change Orders
Partner-requested changes to SOWs require separate quotes. The Company will issue a Change Order for requested changes, which both Parties must sign or agree upon in writing. Change Orders can only address terms in the “Terms Contained in the SOW” section.
- Multiple SOWs
Parties may execute concurrent SOWs. The Company may suspend work on all SOWs if the Partner fails to fulfill payment obligations. Suspended Project Services adjust the Completion Date(s) accordingly. The Company may require advance payment or other reasonable assurances before beginning or resuming work.
- Payment for Services
Partner shall pay the Company each Project Price for services. The Company will issue a final invoice by each Completion Date or a monthly invoice for ongoing work and retainers. Payments, including down payments and setup fees, are due at signing. Recurring invoices begin 30 days after signing when services are ready or at signing. The Partner may not use the Deliverable until the final payment is received. Invoices are due on the noted date, and an 8% late fee applies after 15 days. Unpaid invoices accrue 1.5% interest per month. The Company may suspend services for unpaid invoices after 30 days.
The Partner shall pay travel and other necessary expenses. In a dispute, the Company can withhold the Deliverable until resolution. The Company may offer additional services, chargeable at a maximum hourly rate of $200, but may waive charges.
Any change in pricing must be agreed upon in writing by both Parties and does not affect the Effective Date, Contracted Date, or Term.
The Partner shall pay all fees related to collections, including up to 40% commission. Unpaid invoices 60 days overdue will be referred to a collection agency, and the Partner consents to receive automated calls, emails, voice mail drops, and texts from the agency, including telephone calls from an automated telephone dialing system as defined by the Consumer Protection Act of 1991(and as amended), 47 U.S.C. § 227.
- Termination of SOW by Company
The Company may modify, reject, or terminate an SOW with five days’ written notice. If termination occurs, the Partner shall pay fees for completed Services. Upon payment, materials and use rights will be transferred to the Partner.
- Representations and Warranties
The representations and warranties of the Company are limited to the items contained in this Agreement, and the Company expressly disclaims all other representations and warranties not expressly provided for in this Agreement. The Company represents that any materials used in the Deliverable will not (a) knowingly infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) knowingly violate any law, statute, ordinance or regulation. Notwithstanding this, the Company expressly disclaims any representation or warranty that the Deliverables or Project Services are in compliance with all laws, statutes, ordinances, or regulations as it services Partners in many industries, and the Company is not providing any legal or regulatory compliance services to the Partner.
The Partner represents that any Project Services requested and any materials provided to the Company for incorporation into the Deliverable will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation. The Partner agrees to indemnify and hold the Company harmless against all Claims that may arise for any violation of this Section.
Both Parties represent that the individual signing this Agreement is an authorized representative of each Party with full authority to sign and bind each Party to this Agreement.
Both Parties acknowledge that any SOW may include engaging with large technology companies (eg Facebook). Parties acknowledge that these technology companies may, at any time, change or enact policies that may impact marketing efforts by the Company on behalf of the Partner. These changes may have varying effects, including, but not limited to, ad accounts being disabled, ads being shut off, and reporting difficulties. The Partner acknowledges that the Company is not responsible for these effects and that these complications do not, in any way, impact this agreement. The Company represents that should any of these issues arise it will take best-practice steps to attempt to alleviate negative effects.
Partner acknowledges and agrees that Partner’s timely response to Company’s requests for feedback will have a significant impact on the schedule set forth in the Proposal and the quality of the Work.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY IS NOT PROVIDING PRIVACY, DATA PROTECTION SERVICES, OR COMPLIANCE FOR THE PARTNER.
- Ownership of Deliverables
The Company retains ownership and rights to Company Proprietary Information, raw video footage, music, images, and other components. Upon full payment, the Partner receives ownership of the Deliverable. The Partner retains ownership of the original materials provided to the Company. The Company shall retain sole ownership and license rights in the Company Proprietary Information, and Partner does not receive a license or other right to any of the Company Proprietary Information under this Agreement or access rights to any account created by the Company, such as, but not limited to, a Google Ads account.
The Partner retains all ownership of their brand, logos, images, etc., but expressly consents that The Company may use The Partner’s logos in ways consistent with The Partner brand. This consent includes us of name and logo without notice in connection with certain promotional materials that The Partner may disseminate to the public. The promotional materials include but are not limited to brochures, videos, and websites. The Partner also owns any and all accounts that the Company did not create. The Company may transfer ownership of accounts to the Partner when mutually agreed upon in an Agreement Addendum.
- Term and Termination of Agreement
The specific and related Marketing Agreement dictates the Term of this Agreement.
The Company may elect to terminate this Agreement at any time with 30 days’ advance written notice to the Partner. A prorated final payment will be due if termination occurs after the monthly billing cycle date. If the Partner wishes to terminate before the agreed term has been met and no agreement can be reached, the Partner may terminate the Agreement by paying the Company 50% of the Agreement’s remaining value (Buy-Out). The monthly retainer rate determines the value at the time of termination and the number of months remaining in the term. Otherwise, the Agreement will remain in effect.
Notwithstanding the termination of this Agreement, the Parties agree that all payment obligations, indemnification provisions, limits on liability, limits on representations and warranties, and forum selection, governing law, non-solicitation, and dispute resolution provisions (including attorney fee provisions) will survive termination and remain in effect as outlined in this Agreement or indefinitely if the Agreement is silent on the term of such agreements.
All termination requests must be received in writing via mail or email. Termination requests sent via mail will be acknowledged on the date of the postmark, while those sent via email must be sent to email@example.com and will be acknowledged on the date sent. Termination requests sent in any other manner will not be valid.
- Work Product Approvals
The Partner has 14 days to approve or request web development work product revisions. For non-web development Work Products, the Partner has a minimum of 2 business days. If no response is received, the Company assumes approval. Revisions requested after these periods may incur additional charges.
The Partner will defend, indemnify and hold the Company harmless from any and all claims, losses, liabilities, demands, damages, suits, expenses and costs (including attorneys’ fees and court costs) (“Claims”) arising from or relating to any issues regarding elements or materials provided by Partner and incorporated into the Deliverable. Additionally, the Partner agrees to defend, indemnify and hold Company harmless from any and all Claims arising from or relating to any issues regarding Partner’s unauthorized use of any music, images, or other materials comprising the Deliverable and from any and all Claims related to Partner’s non-compliance with laws applicable to Partner’s business.
- Limitation of Liability
The Company shall not be held liable for any loss of use, interruption of business, lost profits, or any indirect, special, incidental, punitive, or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict product liability, or otherwise, even if advised of the possibility of such damages. The Company’s total liability under this Agreement shall not exceed the fees paid to the Company under this Agreement.
- Agreement Amendment
If the Parties wish to amend this Agreement, they must do so in writing, signed by both Parties, specifically referencing this Agreement and this section, and titled similarly to “Amendment to Master Services Agreement”. The Parties may designate an amendment as the “First”, “Second”, and so on. Amendments must be separate from a Statement of Work (SOW). This section notwithstanding, the Parties may update the Agreement as provided in Section 10 above.
- Miscellaneous Legal Provisions
The Partner cannot assign this Agreement without the Company’s prior written consent; any attempt will be void. The Company may assign this Agreement with the Partner’s written consent or without consent if the Company or its assets are purchased. Any notice or consent under this Agreement must be in writing and provided to the specified address or the most recent address provided in writing by either Party. If any provision of this Agreement is deemed unenforceable or invalid by a competent court or arbitrator, that provision shall be limited or eliminated to the minimum extent necessary for the Agreement to remain in full force and effect. Waivers or amendments are effective only if made in writing and signed by a representative of the respective Parties. No course of conduct between the Parties may alter the terms of this Agreement. Both Parties agree that this Agreement is the complete and exclusive statement of their mutual understanding, superseding and canceling all previous written and oral agreements and communications related to this Agreement’s subject matter. All SOWs will be incorporated into and become part of this Agreement. In case of inconsistency between any online terms and conditions of the Company and this Agreement, this Agreement’s terms and conditions shall control. Both Parties agree that the Agreement is signed by an authorized company representative authorized to bind each company to its terms and services, and no consent from any third party is required. This Agreement shall be deemed the joint work product of both Parties, and any rule of construction that a document shall be interpreted or construed against the drafter of such documents shall not be applicable to this Agreement.
- Governing Law
This Agreement shall be deemed made in and construed pursuant to the laws of the State of Utah and the United States, without regard to conflicts of law provisions. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in Salt Lake City, Utah, and each party irrevocably submits to the jurisdiction and venue of such courts.
The Company reserves all remedies available at law or equity for any disputes that arise under this Agreement and may seek a temporary restraining order, preliminary injunction, and/or permanent injunction in the event the Partner is violating any of the Company’s intellectual property rights. In the event of a suit or proceeding under this Agreement, the non-prevailing Party agrees to pay all reasonable attorneys’ fees of the prevailing Party. A Party shall be considered to be a prevailing Party if a final injunction is entered in its favor, even if a temporary restraining order or preliminary injunction was not entered, or if an appellate or Supreme Court holds in its favor, even if lower courts did not.
18. No Partnership or Agency
Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between the Parties as each are independent contractors, and each will be solely responsible for their own employees, taxes, insurance, licenses, and other legal or business obligations.
- Non-solicitation Agreement
The Partner agrees not to directly or indirectly solicit for employment, advise, or recommend to any other person to solicit for employment any employee of the Company (or any subsidiary or affiliate) during the Term and for two years thereafter.
- Counterparts and Originals
This Agreement may be executed in multiple counterparts, each of which constitutes an original. The Parties may sign or transmit this Agreement electronically, and an electronic copy of this Agreement is considered an original.
Accepted and agreed to as of the Effective Date by the authorized representative of The Partner.