Master Services Agreement

Same Thing, Now with Legal Flair to Make Lawyers Happy

(Why? Because they have feelings too ... and some are clients)

 

Basic Definitions

• "Client" or "Customer," that's you, the person or business who has purchased a plan, session, project, or consulting.

• "Agency," that's us, Metamorphosis Agency LLC.

• "Plan" or "Pricing Plan" refers to one of our preconfigured pricing plans (aka "Pricing Packages") for small businesses, authors, artists, musicians, non-profits, and community organizations.

• "SOW" may refer to a specific Statement of Work or paper contract. If you've purchased a 1:1 consulting session or a Pricing Plan, the SOW refers to the scope as prescribed by that Plan

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In consideration of this mutual agreement, covenants, rights, and obligations provided for pursuant to these Terms and Conditions and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged by these parties, and intending to be legally bound by the Agreement, Client and Agency covenant and agree as follows: 

Additional Services, Project Changes

Any services outside the scope of the attached SOW or changes to previously approved work requested by the Client shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties. Each such additional SOW or Change of Scope is hereby incorporated herein by this reference.

Expenses

Client will be notified in advance for pre-approval of any additional expenses in excess of more than ten percent (10%) of those set forth on each SOW. Agency and client will mutually determine payment terms and payor prior to approval and then Client shall either pay such fees directly to the third-party vendor or reimburse Agency therefore upon presentation of applicable invoices. Agency shall maintain records of expenses. Where applicable, Agency will invoice Client for all fees related to the acquisition of talent or talent services in advance and will only secure talent services upon receipt of all such fees from Client or in accordance with terms otherwise explicitly stated in any attached SOW.

Time of Payment and Late-Payment Charges

The Client shall pay Agency for the work 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. For the avoidance of doubt, fees or commissions payable to Agency for media planning and buying services are in addition to, and not inclusive of, Agency’s fees for other services which may be listed in each SOW, such as design, branding, hosting, and content distribution and syndication. Delays resulting from the action or inaction of Client may result in an adjustment in fees by Agency, subject to Client approval. 

 

Each invoice hereunder is due and payable within 30 days after its invoice date. Payment may be made via ACH or by check. If by check, please make payable to “Metamorphosis Agency, LLC” and it must be received within 30 days from the invoice date at Agency’s offices, located at:

 

Metamorphosis Agency, LLC

2 Jill Lane

Lawrence Twp., NJ 08648

 

Some invoices may include an option to make payment online if requested by the Client, in which case payment may be made by ACH bank transfer, in which case the transaction must be completed within the same 30 days from the original invoice date. Any transactional fees will be paid by the Client and will be included on the invoice.

 

All rights of the Client herein are conditioned on Agency’s receipt of full payment. In addition, Agency may suspend performance of services and withhold delivery of materials until payment in full of all amounts due. Agency shall not be liable for any damages, losses or liabilities that may arise out of Agency’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue interest at the rate of 3% per month. Agency shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.

Client Representative

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 Agency of Client instructions, change orders and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on Client. If after the Client Representative has approved a work-product or deliverable, the Client or any authorized person alters the scope of work or requires additional services, the Client shall pay all fees and expenses arising from such changes and additional services as set forth in section 1 above.

Client Obligations and Materials

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.

 

All copy provided by the Client shall be in an electronic, editable format suitable for typesetting (i.e., Google Doc, PowerPoint, spreadsheet, etc.). 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. 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 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.

 

It is our mutual expectation that Agency and Client will be active partners in helping to achieve the deliverables and milestones described in the work plan. While not strictly in the scope of this effort, Agency agrees to make suggestions for Client considerations for additional marketing and communications activities which may strengthen Client’s market presence. Client agrees to facilitate meetings and work according to any attached SOW.

Approval of Work

Within fifteen business days following receipt of any deliverables, the Client will provide Agency with either:

1. written approval and acceptance of such deliverable (which will not be unreasonably withheld), or 

2. a written list of reasonable modification guidelines that will bring the deliverables into compliance with the SOW. 

 

Each deliverable hereunder will be deemed accepted by the Client if, within fifteen business days of its delivery to the Client, the Agency does not receive and confirm the foregoing written notice. Client may request a deadline extension when a deliverable is received and Client and Agency will work together to accommodate each team’s schedules, and adjust deadlines accordingly. Payment of invoices will not be deemed acceptance of Deliverables, but rather such Deliverables will be subject to inspection, test, acceptance or rejection in accordance with the acceptance or completion criteria as specified in the relevant SOW (“Scope of Work”) or Project Plan (“Plan”), to be established and mutually agreed and attached as addenda to this Agreement, as needed. Client may, at its option, either reject Deliverables that do not comply with the acceptance or completion criteria for a refund of unused budget, or require Agency, upon Client’s written instruction, to repair or replace such Deliverables, without charge and in a timely manner, according to the scope established within this statement of work and the aforementioned Plan. 

 

The Client's written approval of any deliverables, materials, plans or other Work created or produced by the Agency in the course of the provision of the Services, or any cost estimate, will constitute the Agency’s authority to purchase, publish, and make contracts for talent, space, time and other facilities and otherwise to do any other act or thing which the Agency considers it reasonable to do in order to carry out its obligations under this Agreement or any Statement of Work.

 

The Agency will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client's instructions and the Agency will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.

Suppliers

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.

Legal Clearances and Indemnification

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.

Liability

Agency shall not be held responsible for delays or nonperformance caused by activities or factors beyond its reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Agency or by Client. Agency will not hire subcontractors to perform the activities in this agreement or any attached Statement of Work (SOW) without explicit declaration of subcontracted activities in such an SOW or attachment and written approval from Client. Agency shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. Agency’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.

 

Time is of the essence with respect to the Agency's and Client’s performance of all of its obligations under this Agreement. It is our mutual expectation that the Agency and Client will be active partners in helping to achieve the deliverables and milestones described in the work plan. If for any reason the Agency or Client are unable to comply with the time requirements provided for in this Agreement, the Party shall immediately notify all Parties of the estimated delay involved. Agency and Client agree to make no claim for damages for delay in the performance of this Agreement occasioned by an act or a failure to act by or any of its representatives. In such cases, Agency's sole remedy for delay shall be an extension of the time for Agency’s performance equal to the duration of Client’s delay, according to the monthly retainer rate, estimated by the projected and allocated hours in the SOW, provided such extension is otherwise agreed to in advance in writing by the parties. 

Confidential Information

Confidential information is that which relates to the Client’s or Agency’s research, development, trade secrets or business affairs and includes, in the case of Agency’s confidential information, concepts presented to, but not selected by, the Client; it does not include information that is generally known or easily ascertainable by third parties. Agency and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. 

Non-Solicitation

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 18 months thereafter.

Rights, Ownership, and Usage

Subject to Agency’s receiving full payment under this Agreement, Agency assigns to the Client, without representation or warranty, all rights, title, and interest Agency may have in any work specifically created by Agency for the Client pursuant to this Agreement, except that:

1. Agency may use and distribute such work as part of its portfolio for promotional purposes, including the use of Client’s name and logo;

2. Agency shall own and retain all rights to any and all concepts, ideas, designs, proposals, and other work and materials (collectively, “Work”) which have been presented to the Client but not included in the final work product;

3. 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 Work (collectively, “Background Technology”). This includes any new software or intellectual property developed to fulfill the SOW but not explicitly listed as a deliverable. Unless the parties agree otherwise in a written and signed Statement of Work, Agency shall retain ownership of any and all Background Technology, including any and all associated intellectual property rights. Agency hereby grants to Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display, and perform Agency’s Background Technology, 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 Statement of Work. Use of Background 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

4. If the Client desires to utilize any of the 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 Agency to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such Work if, and only if, Agency declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to Agency.

5. Subject to the services provided hereunder or in an attached SOW, Agency shall retain all rights to any existing illustrations and other proprietary technologies or artwork that it provides, if any, listed in any SOW (each item, a “Property”), provided that Agency shall not, without Client’s prior written consent, use, license, sell or otherwise authorize the use of any Property that becomes synonymous with Client’s brand for use in connection with the marketing or promotion of any competitive consumer product or brand, in any format or medium, electronic or otherwise, for a period of one year from date on which such Property is first published. Except as otherwise set forth in this Section 12, Agency grants Client the limited, exclusive, irrevocable right to use the Property as set forth in any SOW.

 

Term and Termination

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 Client without Agency’s fault or consent, Client shall pay Agency all of the fees earned by Agency pursuant to the terms hereof plus any and all expenses and third-party costs reasonably incurred by Agency through the effective date of cancellation. At Agency’s election, Client’s delay of work under this Agreement for a cumulative period of more than 30 days without Agency’s fault or consent may be considered a termination of this Agreement by Client within the meaning of the immediately preceding sentence upon Agency’s notice. If Client desires to terminate this Agreement due to Agency’s fault, Client shall give Agency written notice detailing the nature of Agency’s fault and possible remedies, whereupon Agency shall have a reasonable period of time (but in no event less than 30 days) to cure such fault. Termination by Client without providing the foregoing notice and cure period shall be considered “termination without Agency’s fault’ as described above.”

Warranties 

Both parties make the following ongoing representations and warranties: 

1. They have the right to enter into this Agreement and their performance of this Agreement will comply, at each party’s own expense, with the terms of any contract, obligation including any between Client and its end-users; or any law, regulation, or ordinance to which it is or becomes subject; 

2. No claim, lien, or action exists or is threatened against either party that would interfere with each party’s rights under this Agreement; 

3. All authors have agreed not to assert their moral rights in the Deliverables, to the extent permitted by law;

4. Deliverables are safe for use, consistent with, and will comply with the warranties, specifications, and requirements in this Agreement; Agency will perform preliminary research to reasonably assure rights but, ultimately, the Client will be responsible for all copyright searches, patent research, and the rights to use creative and materials developed;

5. Services will be performed using reasonable care and skill and in accordance with the relevant SOW and/or Plan.

Governing Law, Jurisdiction, and Attorney Fees

The Parties agree that this Agreement shall be governed by, and construed in accordance with, the laws of the State of New Jersey without regard to any conflict of law provisions. Any controversy between the parties hereto involving the construction or application of any of the terms, covenants, or conditions of this Agreement will, on the written request of one party served on the other, be submitted to arbitration. The arbitration will comply with and be governed by the provisions of the New Jersey Code of Civil Procedure.

 

The parties will each appoint one representative, who will then appoint one arbitrator to hear and determine the dispute and whose decision will be final and conclusive on both parties. The cost of arbitration will be borne in such proportions as the arbitrator may decide.

Notices

Any and all notices required or permitted hereunder shall be sent by certified mail, return receipt requested, to the address of the party for which intended, set forth below its signature hereto and, in the case of the Agency.

Miscellaneous 

Metamorphosis will be accessible during the course of its business hours, less holidays, and time out of the office according to each SOW’s Workplan, from Monday through Thursday, between 9 am and 5 pm US Eastern time, and on Fridays and weekends when arranged and agreed in advance.

 

If the parties agree to additional services, referred to as Scopes of Work, these Master Terms and Conditions shall control, including in the event a conflict exists between this Master and any new Scopes of Work.