MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is made by and between Search Hound LLC, a Washington limited liability company (“Company”), and the client listed at the end of this Agreement (“Client”) and is effective as of the date executed by Client (“Effective Date”). In consideration of the mutual covenants and promises contained herein, the parties hereby agree as follows:
1. Contracted Services. This Agreement shall apply to the delivery of services as may further be described in one or more Statements of Work (each a “SOW”) which shall be attached hereto as one or more exhibits and incorporated herein by reference (the services and functions provided by Company under this Agreement or described in any SOW are hereafter referred to as the “Services”). In the event that the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, or if Client requests additional Services, the parties shall prepare and sign an amended or new SOW, which likewise shall be attached hereto and incorporated herein by reference. The terms of this Agreement shall govern all Services provided, now or in the future, and all acts and activities of Company in relation to Client or the Services.
2. Term of Agreement. The term of this Agreement will commence on the Effective Date and will continue until the completion of Services or otherwise terminated by either party upon written notice to the other party of its intent to terminate the Agreement. Upon termination by either party, Company’s obligations hereunder shall terminate, and Client will pay Company for all Services performed and expenses reasonably incurred by Company in connection with the Services provided under this Agreement through the date of termination.
3. Fees. In exchange for the Services performed by Company, Client agrees to compensate Company at the rates identified in the fee schedule set forth in the SOW (the “Fees”). Fees are subject to change at any time by Company upon thirty (30) days’ written notice. For all Services requested by Client which are not described in an SOW, Company’s standard rate of $100.00 per hour will apply, billed in 15-minute increments with a minimum of one hour.
4. Payment Terms. All invoices are due within ten (10) business days from the invoice date. After thirty (30) days, a late charge of one percent (1%) per month, or the legal maximum if less, shall accrue on past due billings. Client shall be responsible for any costs incurred by Company in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorneys’ fees. Company reserves the right to stop the Services at any time if Client fails to pay any invoices when due.
5. Expenses. Client shall reimburse Company for any out-of-pocket expenses Company reasonably incurs in providing the Services which expenses will be invoiced with Company’s fees.
6. Cooperation. To assist Company in providing the Services, Client may be required to provide Company with information or materials as may be requested from time to time. Client acknowledges that information exchange is critical to provide the Services and understands that delays in response times to Company may impact the quality and timeliness of Company’s performance of the Services and may result in additional charges. Client agrees to respond to phone messages, text messages, and email communications within twenty-four (24) hours except in the event of weekends or major holidays and in which case, immediately thereafter.
7. Independent Contractor. In providing the Services, Company will be an independent contractor to Client. The parties do not intend to enter a joint venture, partnership, or employment arrangement by entering into this Agreement. Company shall exercise its sole independent judgment in providing the Services and is responsible for the control and supervision of the means by which the Services are provided. Nothing contained in this Agreement shall limit Company’s ability to provide similar services to other clients.
8. Confidential Information.
(a) Definitions. Company and Client acknowledge that one party (a “Discloser”) may provide to the other party (a “Recipient”) proprietary or otherwise confidential information and trade secrets including, without limitation, business plans, internal communications, proprietary reports, market data and information, reports and analyses, or any other confidential or secret aspects of the business of Discloser or any of its subsidiaries, affiliates or customers (“Confidential Information”). Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of Recipient, (ii) was developed independently by Recipient, or (iii) is or was lawfully and independently provided to Recipient prior to disclosure by Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
(b) Use. Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by Discloser in writing, (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation. Client grants Company a limited, non-exclusive, non-transferrable license to use Client’s Confidential Information as reasonably necessary or required to perform the Services. Nothing in this Agreement is intended to prohibit the disclosure or discussion of conduct, or the existence of any settlement involving conduct, as set forth in RCW 49.44.211.
(c) Due Care. Recipient will exercise the same degree of care with respect to the Confidential Information it receives from Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
(d) Compelled Disclosure. If Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, Recipient will immediately notify Discloser in writing of such requirement so that Recipient may seek a protective order or other appropriate remedy and/or waive Discloser’s compliance with the provisions of this Section. Recipient will use its best efforts, as directed by Discloser and at Discloser’s expense, to obtain or assist Recipient in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that Recipient has been advised, by written opinion from its counsel (which shall be shared with Discloser), that Recipient is legally compelled to disclose.
9. Third Party Services. Portions of the Services may be acquired from, resold from, and/or rely upon the services of third party vendors, manufacturers, or providers (“Third Party Provider”). Third Party Providers may provide services including, but not limited to, Customer Relationship Management (CRM) services, phone and video conferences services (VOIP), and software as a service (SAAS) (each, a “Third Party Service”). Client will provide Company with access and systems permissions to Third Party Services to enable performance of the Services. Client understands and agrees that Third Party Providers are not Company’s contractors, subcontractors, or otherwise under Company’s managerial or operational control. Company will not be responsible, and will be held harmless by Client, for any error or failure of any Third Party Service as well as the failure of any Third Party Provider to provide such services to Company or Client.
10. Work for Hire. All deliverables, materials, information, computer program code, characters, and other expressions or items authored, made, conceived, or developed by Company in its performance of website development work, if any, and which do not include any of the foregoing existing prior to the initiation of the Services, (collectively, the “Deliverables”), together with all patent, copyright and other proprietary rights associated with ownership of such items, shall be the exclusive property of Client and shall be promptly disclosed and furnished to Client by Company. To the fullest extent permitted by applicable law, such Deliverables shall be “work made for hire”. To the extent any Deliverables are not “work made for hire”, Company hereby assigns to Client, without separate compensation, all right, title and interest in and to the Deliverables together with all associated United States and foreign patent, copyright, trade secret and other proprietary rights, including, without limitation, the rights of registrations and renewal. In addition, Company hereby waives and releases any and all moral rights and rights of restraint that Company may possess in or to any Deliverables. Company shall take, at Client’s expense, all actions during or after the performance of the Services reasonably requested by Client for the implementation of this Section or to evidence, perfect, or protect Client’s ownership of the Deliverables and associated proprietary rights (including, without limitation, the execution, acknowledgment, and delivery of instruments of conveyance, copyright, patent, trademark, or other proprietary right registration applications or other documents).
11. Client Use. If Client declines to accept a Deliverable or any other Service delivered by Company and subsequently incorporates or utilizes any portion thereof, then Client shall be deemed to have accepted such Deliverable and/or Service and shall pay the Company the full amount invoiced for such Deliverable at the time of delivery, the amount of such invoice to be in Company’s sole but reasonable discretion.
12. Warranty of Services. The Services are provided “As-Is.” To the maximum extent provided by law, Company disclaims all warranties and conditions, either express or implied, including, but not limited to, implied warranties or conditions of merchantability and fitness for a particular purpose.
13. Limitation of Liability. Client agrees that Company shall not be liable to Client, or any third party, for (a) any liability claims, loss, damages, or expense of any kind arising directly or indirectly out of the Services, (b) any incidental or consequential damages, however caused, or (c) any punitive damages. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the laws of any state. Company’s liability for any damages hereunder shall in no event exceed the amount of Fees paid by Client to Company as of the date the alleged damages were incurred.
14. Miscellaneous Clauses.
(a) Waiver. The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate this Agreement or to enforce any provision of this Agreement for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.
(b) Accord & Satisfaction; Allocation of Payments. No payment by Client or receipt by Company of a lesser amount than the Fees provided for in this Agreement or any SOW shall be deemed to be other than on account of the earliest due Fees, nor shall any endorsement or statement on any check or letter accompanying any check or payment for Fees be deemed an accord and satisfaction, and Company may accept such check or payment without prejudice to Company's right to recover the balance of Fees or pursue any other remedy provided for in this Agreement. In connection with the foregoing, Company shall have the absolute right in its sole discretion to apply any payment received from Client to any account or other payment of Client then not current and due or delinquent. The receipt and acceptance by Company of delinquent Fees shall not constitute a waiver of any other default; it shall constitute only a waiver of timely payment for the particular Fee payment involved.
(c) Force Majeure. Company will not be liable to Client for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or pandemic or epidemic (“Force Majeure Event”) and Company shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any Services in whole or in part, as a result of delays caused by the other party or any Force Majeure Event or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including failures or fluctuations in electric power, heat, light, air conditioning or telecommunication equipment, and such nonperformance shall not be a default hereunder or a ground for termination hereof.
(d) Notices. All notices under or regarding this Agreement will be in writing and deemed duly given (i) when delivered personally to the recipient; (ii) when sent by electronic mail, on the date of transmission to such recipient if sent during normal business hours of the recipient, and if not sent during normal business hours, then on the next business day; (iii) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid); or (iv) four business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the address last provided by the intended recipient.
(e) Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected.
(f) Captions. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
(g) Entire Agreement. This Agreement and the SOW(s) incorporated herein constitute the entire agreement between the parties regarding the subject matter of this Agreement and supersede any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement.
(h) Amendments; Counterparts. This Agreement and SOW(s) may be amended only by an instrument in writing executed by the parties hereto. Any written work or request submitted by Client shall not amend the terms of this Agreement and will only be considered a statement: (i) of the work to be performed; (ii) setting forth any deadlines or schedules; and (iii) describing the additional fees to be charged, if any, for any out of scope work or services stated on the work order. This Agreement, SOWs and any modifications may be signed in counterparts with all counterparts collectively constituting one agreement, with facsimile and electronic signatures as effective as originals.
(i) Survival. The provisions of this Agreement that by their nature extend beyond the termination of this Agreement shall survive the termination or expiration of this Agreement, including for payment of Fees.
(j) Disputes. Should a dispute arise under this Agreement or between the parties, the parties shall first notify the other party in writing of the dispute and attempt in good faith to resolve the matter informally by meeting in person or by telephone or video conference. If the parties are not able to resolve the dispute informally within thirty (30) days from the first discussion, the dispute may then be submitted to mediation. If mediation is unsuccessful or declined, the dispute shall be resolved in any court of competent jurisdiction. The prevailing party is entitled to recovery of its reasonable attorneys’ fees and costs incurred, including reimbursement of their share of the mediation fees and costs, if any. Notwithstanding the foregoing, Company shall not be required to engage in mediation or arbitration for the collection of Fees or expenses.
(k) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Washington. The parties hereby consent to the jurisdiction and venue of any appropriate court located in King County, Washington.
(l) Assignment. Client shall make no assignment of this Agreement without prior consent in writing of Company. Company shall have the right to assign this Agreement to any affiliate or successor in interest.
(m) Successors and Third Party Beneficiaries. This Agreement shall inure to the benefit of Company and Client and any successors or assigns of Company and Client. No third party shall have any rights hereunder.
(n) Conflicting Terms. To the extent the provisions contained in this Agreement are inconsistent with those contained in any SOW executed pursuant hereto, the terms and provisions contained herein shall control unless specifically agreed to by Company in writing.
(o) Authority. The individual executing this Agreement on behalf of Client warrants that they have the authority to execute this Agreement on behalf of the Client and to bind the Client to this Agreement.