This Master Services Agreement (“MSA”) is made on this (“Effective Date”) and entered into by and between (“Company”), a (corporation/LLC) and Deveney Communication LLC, a limited liability corporation having its principal place of business at 2406 Chartres Street, New Orleans, LA 70117 (“Agency,” each, a “party” and collectively, the “parties”). In consideration of the premises and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
Section 1 – Scope of Work
Agency agrees that during the term of this MSA, Agency shall render services to Company per approved Scopes of Work and/or Estimates, which will be separate written documents entered into and executed by each of the parties. Each Scope of Work and/or Estimate will become an integral part of this MSA. Agency shall perform all work using duly qualified personnel.
Section 2 – Compensation and Payment
Unless otherwise indicated in a separate Scope of Work or Estimate, Agency will invoice Company for work based on the type of work. For Projects, defined as the provision of services or development of products for which there are finite deliverables that are separate from retained services, half of the project fee is due at signing and the other half is due upon completion of the project and is due within 30 days of receipt of invoice, which will be issued upon completion of the Project. For work based on a retainer, the monthly fee will be billed by the 5th of each month for work to be performed during that month and the retainer fee will due within 30 days of Company’s receipt of invoice. Fees and expenses that are unpaid after 30 days and every 30 days thereafter will accrue a fifteen (15) percent APR finance charge.
Section 3 – Expenses
Company agrees to reimburse Agency for pre-approved, reasonable travel, materials and expenses incurred in direct relation to Agency’s rendering of services under this MSA.
Section 4 – Acquired Goods and Services
Upon written approval by Company, Agency shall be authorized to acquire goods and services on behalf of Company, including but not limited to digital media and printed materials. Company agrees to reimburse Agency for pre-approved purchases made on its behalf.
Section 5 – Term and Termination
The term of this MSA shall run for a period of 24 months from the date of execution unless extended by a written agreement between the parties hereto. This MSA may be canceled at any time for no reason with 90 days written notice. Company and Agency agree to abide by terms of signed Scopes of Work or Estimates through completion of projects and payments, including retainer services, during the termination period.
Section 6 – Authorship and Intellectual Property
6.1 Except as provided in Section 6.2 below, all original works of authorship created hereunder (collectively, the “Client Data”) shall, from the inception of its creation, be considered “works-made-for-hire” for Company within the meaning of the Copyright Act of 1976 (Title 17, U.S.C.) and Company will own the copyright and all other rights in and to the work, including, without limitation, the exclusive right to use the Client Data for any purpose and in any medium, now known or devised in perpetuity and throughout the universe. If it is determined that any portion of the Client Data does not so qualify, then such Client Data, together with all rights in it, shall be deemed transferred to Company by this MSA. All such Client Data shall, from the inception of their creation, be entirely the property of Company, in perpetuity, or any persons deriving any rights or interests therefrom. Company shall have the right to make any changes to the Client Data and to combine the Client Data with other data, as Company desires, in its sole discretion.
6.2 Notwithstanding Section 6.1, above, Company acknowledges that as part of performing services, Agency personnel may utilize proprietary software, methodologies, tools, specifications, writings, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge or data which has been originated or developed by the personnel of Agency or its affiliates or by third parties under contract to Agency to develop same, or which has been purchased by or licensed to, the Agency (collectively, “Agency Proprietary Intellectual Property”). Company agrees that Agency Proprietary Intellectual Property is the sole property of Agency (or its licensor) and that Agency (or its licensor) will at all times retain sole and exclusive title to and ownership thereof.
Section 7 – Independent Consultant
In entering into this MSA and in providing services pursuant hereto, Agency acknowledges that it has and shall have a status independent of Company and nothing herein contained shall contemplate or constitute Agency as Company’s employee. Company shall not be responsible for providing workers’ compensation insurance for Agency. Furthermore, Company shall not withhold in respect of any state or federal income taxes on account of compensation paid to Agency pursuant to this MSA. Agency shall make all arrangements necessary for timely payment of all the foregoing on its own account.
Notwithstanding the foregoing, neither party shall, for a period of two (2) years following the termination of this MSA, either directly or indirectly, on its own behalf or in the service or on behalf of others, solicit, contact or attempt to persuade any employee of the other party to engage in employment with the other party. The parties agree that this limitation on their ability to solicit the other party’s employees is reasonably necessary to protect each party’s legitimate business interests.
Section 8 – Confidential Information
(a) Company Information. Agency agrees at all times during the term of its consultancy and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, and not to disclose to any person without written authorization from the Company, any Confidential Information of the Company. Agency understands that “Confidential Information” means any Company proprietary or confidential information, technical data, trade secrets or know-how, including, but not limited to, research, business and product plans, products, product specifications and documentation, services, customer lists and customers (including, but not limited to, customers of the Company on whom Agency calls or becomes acquainted with during the term of the engagement hereunder), markets, software code, developments, inventions, processes, formulas, configurations, tooling, schematics, circuits, mask works, layouts, technology, designs, drawings, engineering, marketing, distribution and sales methods and systems, sales and profit figures, finances and other business information disclosed to Agency by the Company, either directly or indirectly in writing, orally or by drawings or inspection of documents or other tangible property. In addition, Confidential Information shall include any information received in the capacity as an independent consultant working on behalf of the Company that is received by the Agency from a third party subject to the confidentiality terms of this MSA. Company acknowledges that Confidential Information does not include any of the foregoing items that have become publicly known and made generally available through no wrongful act of Agency. Agency agrees that Confidential Information (including all intellectual property rights therein) is the Company’s exclusive property and shall not be copied or removed from Company’s premises except for Company business with prior approval from Company. At the end of Agency’s engagement with the Company, Agency shall return all originals and copies of any Confidential Information to the Company.
(b) Former Client / Employer Information. Agency agrees that it will not, during the Term or at any time in engagements with Company, improperly use or disclose any proprietary business information or trade secrets of any former client, employer, person or other third party with whom Agency has an obligation or duty to keep such information or secrets confidential if any, and that Agency shall not bring onto the premises of the Company any unpublished document or proprietary business information belonging to any such client, employer, person or other third party unless consented to in writing by the party to which the obligation is owed.
(c) Third Party Information. Agency acknowledges that the Company has received, and in the future will receive, from third parties their confidential or proprietary business information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Agency agrees to hold all such confidential or proprietary business information in the strictest confidence and not to disclose it to any person or entity or to use it except as necessary in carrying out its work for the Company, consistent with the confidentiality terms of this MSA. Agency shall not disclose to the Company, use in the Company’s business, or cause the Company to use, any information or material which is confidential to others and which the Company has not been authorized to use. Specifically, Agency certifies that it has not disclosed to the Company any confidential or proprietary information belonging to prior clients, employers or other third parties and shall not disclose the same to the Company at any time, such confidential or proprietary information.
(d) Company agrees to be bound to the same level of confidentiality as described in Section 8(a), (b) and (c) with regard to any information received by Company from Agency.
Section 9 – Representations & Warranties / Indemnification
Each party (the “Indemnifying Party”), at its sole expense, will defend, indemnify and hold the other party harmless from and against any and all claims, damages, fines, judgments, settlements, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorney fees) resulting from any third party claim, suit, action, or proceeding (“Claim”) against the other party (the “Indemnified Party”), whether successful or not, resulting from or arising in connection with any grossly negligent act or willful misconduct by the Indemnifying Party or an authorized party acting on its behalf. The Indemnifying Party’s indemnification obligations under this Section 9 are conditioned upon the Indemnified Party: (a) giving prompt notice of the Claim to the Indemnifying Party once the Indemnified Party becomes aware of the Claim; (b) granting sole control of the defense and settlement of the Claim to the Indemnifying Party (except that the Indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of or result in any ongoing liability to the Indemnified Party); and (c) providing reasonable cooperation to the Indemnifying Party and, at the Indemnifying Party’s request and expense, assistance in the defense or settlement of the Claim.
Section 10 – Notice
Any written notice to be given under this MSA will be deemed sufficiently served when sent via electronic mail, deposited in the United States mail or overnight carrier in a sealed envelope with sufficient postage affixed, registered or certified, with return receipt requested.
Any party may change the address to which notice to it may be given by written notice to the other as provided in this MSA.
Section 11 – Entire MSA / Amendments
This MSA constitutes the entire understanding between the parties with respect to the subject of the MSA, and may not be altered or amended in any manner except by a writing signed by the parties which shall include duly executed Scopes of Work and/or Estimates.
Section 12 – Waiver / Assignment
No waiver of any breach of this MSA or failure to insist upon the strict performance of any of the terms and conditions of this MSA, shall constitute any waiver of any subsequent breach or waiver of either party’s rights to later insist upon the strict performance of that or any other term or condition of this MSA. This MSA shall be binding upon and shall inure to the benefit of the parties, their successors, legal representatives, and assigns.
Section 13 – Governing Law
This MSA shall be construed and interpreted under the substantive laws of the State of Louisiana, without regard to the choice of law provisions of any jurisdiction. This MSA shall be enforced in the state courts of the State of Louisiana and the federal courts of the United States sitting in Louisiana. This MSA contains the entire understanding and agreement, and each party acknowledges and agrees that there are no representations, warranties or other agreements than as set forth herein. The prevailing party in any dispute arising herein shall be entitled to recover reasonable attorneys’ fees and costs incurred in addition to its actual damages and other relief.
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this MSA to be executed by their duly authorized representatives.