Master Services Agreement

This master services agreement (this “Agreement”), dated as of (the “Effective Date”), is by and between ONE400, a California corporation, with offices located at 38605 Santa Monica Blvd, Suite #18563,
West Hollywood, California 90069 United States (“Agency”) and the (“Client”) and together with Agency, the (“Parties”), and each a (“Party”).

WHEREAS, Agency has the capability and capacity to provide certain marketing, branding, software and web development, and business consulting services; and

WHEREAS, Client desires to retain Agency to provide the said services, and Agency is willing to perform such services under the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Agency and Client agree as
follows:

1. Services. Agency shall provide to Client the services and deliverables (collectively, the “Services“) set out in one or more statements of work to be issued by Agency and accepted by Client (each, a “Statement of Work” or “SOW“) from time to time, each of which is, by this reference, made a part of and incorporated in its entirety herein. Additional Statements of Work shall be deemed issued and accepted only if signed by the Agency and the Client.
   1. Out of Scope. In the event that Agency is requested or required to perform services for Client not specifically provided for in the applicable Statement of Work (the “Out of Scope Services“), such Out of Scope Services and associated Fees must be mutually agreed upon by both Parties in writing prior to Agency’s provision of such Out of Scope Services.
2. Fees and Expenses
   1. Fees. In consideration of the provision of the Services by the Agency and the rights granted to Client under this Agreement, Client shall pay the fee (the “Fee”) set forth in the applicable Statement of Work. Payment to Agency of such Fees and the reimbursement of expenses pursuant to this Section shall constitute payment in full for the performance of the Services. Unless otherwise provided in the Statement of Work, Client shall submit a recurring payment authorization form prior to the commencement of work to be performed under this Agreement. All fees currently payable will be charged on that card on the day they are due. All invoices sent to Client from Agency shall be payable no later than 5 days from receipt by the Client, and in no event more than fifteen (15) days after completion of the Services performed pursuant to the Statement of Work.
   2. Expenses. Client shall reimburse Agency for all reasonable expenses incurred in accordance with the Statement of Work upon receipt by the Client of an invoice from Agency accompanied by receipts and reasonable supporting documentation.
   3. Taxes. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Agency’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
   4. Late Payment. All late payments shall bear interest at the lesser of the rate of two percent (2%) per month or the highest rate permissible under California law, calculated daily and compounded monthly. Client shall also reimburse Agency for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Agency reserves the right to halt performance of Services and withhold deliverables in the event of any late payment by Client; this shall in no way constitute a breach of this Agreement by Agency.
   5. Rush Fee. Any work requested by Client that requires evening or weekend staffing will incur a separate Rush Fee, which shall be quoted by Agency and mutually agreed upon by both Parties in writing prior to that work being performed.
   6. Fees for Subscription Services. If Client subscribes to any of Agency’s paid subscription services (“Subscriptions”), Client shall pay the applicable fee (the “Subscription Fee”). Agency reserves the right to change the Subscription Fee at any time at its sole discretion by providing thirty (30) days prior notice. Client agrees to pay the Subscription Fee in effect at the time of each billing period, as well as any applicable sales, use, excise, and related taxes. Payment for Subscriptions may only be made by ACH payment or with a valid credit, debit card, or bona-fide electronic payment provider (i.e., PayPal) if Agency, in its sole discretion, chooses to make such payment method available. By using any such payment method, Client hereby represents and warrants it has the full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation. Failure to pay these fees will result in the termination of Client’s Subscription. Client further understands and agree that:
      1. Its purchase may be subject to foreign exchange fees or differences in prices based on location (e.g. exchange rates).
      2. Agency may store and continue billing Client’s payment method even after it has expired, to avoid interruptions in Client’s Subscriptions and to use to pay other Subscriptions Client may purchase.
      3. If Client purchases a recurring subscription, Client’s payment method automatically will be charged at the start of each subscription period for the fees and taxes applicable to that period.
      4. All fees or charges paid for Subscriptions; including partially used periods and bank/merchant fees, are non-refundable.
      5. Agency may calculate taxes payable by Client based on the billing information that Client provides Agency at the time of purchase.
      6. If Client chooses to cancel a Subscription, access to the Subscription will expire at the end of Client’s billing cycle.
3. Client Responsibilities. Client acknowledges that it is responsible for performing its obligations under the Agreement in a reasonable and timely manner. Agency is not responsible for any delays in performing the Services due to Client’s failure to meet its obligations under this Section 3. Client shall:
   1. Designate one of its employees or agents to serve as its primary contact and liaison with Agency with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Contact”), with such designation to remain in force unless and until a successor Client Contact is appointed.
   2. Require that the Client Contact respond promptly within three (3) business days to all reasonable requests from Agency for instructions, information, or approvals (“Client Content”) required by Agency to provide the Services, in forms as stated by Agency and, if requested by Agency, suitable for reproduction or incorporation into the Final Deliverables (defined below).
   3. Cooperate with Agency in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable Agency to provide the Services.
   4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Agency’s provision of the Services and not take any actions that would inhibit or impair Agency’s ability to render the Services.
4. Changes to the Project; Delays; Approval of Deliverables.
   1. If the Client wishes to change the scope of the Services set forth in any SOW, Client will make a written change request (“Change Request”). Within a reasonable time after receipt by Agency of a Change Request from Client, Agency will provide Client with any revisions to Fees or scheduling resulting from the proposed Change Request. If Agency and Client agree to all such revisions, Agency will modify the applicable Statement of Work to such reflect such revisions; provided, however, that any such modified SOW shall not be deemed accepted unless it is signed by both Parties.
   2. In the event that Client delays in providing Agency with any approvals, content, or other materials or actions necessary for Agency to provide the Services contemplated under this Agreement (collectively, “Approvals or Materials”), Agency will have, at Agency’s sole discretion, the right to make reasonable modifications to the relevant delivery schedule. The Parties agree that Agency will not be liable for any delay in performance related to Client delays in providing such content or other material or actions, and any such delay shall not constitute a breach of this Agreement by Agency.
   3. If additional Services, Fees, or Expenses are required due to Client’s delay, inaccurate information or mistake, Agency will have the right, in its sole discretion, to modify the applicable Statement of Work to reflect any reasonable changes in costs or scheduling that result.
5. Acceptance of Deliverables. If, upon submission to Client by Agency of any deliverable set forth in a Statement of Work, Client concludes that such deliverable does not conform to the relevant specification (“Specification”) for that deliverable as set forth in the Statement of Work, Client shall send written notice setting forth in reasonable detail the nature of the nonconformity and give Agency a reasonable amount of time given the nature of the nonconformity to make any necessary changes to that deliverable so that it conforms to the Specification. If the Client does not provide such an acceptance or rejection within five (5) business days of receiving a deliverable, that deliverable will be deemed accepted.
6. Client’s Representations and Warranties. Client represents and warrants that:
   1. It has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and
   2. All information and materials provided to Agency by Client will be accurate and complete, will comply with all applicable laws, statutes, and regulations, and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party; and
   3. The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action.
7. Agency’s Limited Warranty
   1. Agency warrants that it shall perform the Services:
      1. In accordance with the terms and subject to the conditions set forth in the respective Statement of Work and this Agreement.
      2. Using personnel of industry standard skill, experience, and qualifications.
      3. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
   2. Agency’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows:
      1. Agency shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Agency cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with this Agreement.
      2. In the event the Agreement is terminated pursuant to the foregoing paragraph, Agency shall within thirty (30) days after the effective date of termination, refund to Client any Fees paid by the Client as of the date of termination for the Services, less a deduction equal to the fees for receipt or use of such Services and associated deliverables up to and including the date of termination on a pro-rated basis.
      3. The foregoing remedy shall not be available unless Client provides written notice of such breach within ten (10) days after delivery of such Services to Client.
   3. AGENCY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED
8. Intellectual Property.
   1. All patents, copyrights, trademarks, trade secrets and other intellectual property rights (collectively the “Intellectual Property Rights”) in and to (1) all in-progress work product, source files, sketches, proposed but unused or unapproved materials or designs, and other development materials that are prepared by or on behalf of the Agency in the course of performing the Services (collectively, the “Working Materials”), and (2) all pre-existing documents, data, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Agency in connection with performing the Services, developed or acquired by Agency independent of this Agreement (collectively, “Pre-Existing Agency Materials”), except for any Confidential Information of Client or Client Content, shall be owned by Agency.
   2. All finished, final deliverables created and actually delivered to Client by Agency in connection with the performance of the Services under this Agreement, including any items identified as such in the Statement of Work, and any resulting Intellectual Property Rights thereto, excluding any rights in Working Materials and Pre-Existing Agency Materials, (collectively, the “Final Deliverables”) shall be the sole and exclusive property of Company. Upon final payment of all amounts due to Agency under this Agreement and provided that Client is not in breach of this Agreement, Agency hereby immediately, irrevocably, and without any limitations, assigns to the Client, in each case without additional consideration, all right, title and interest throughout the world in and to the results, product and proceeds of the Final Deliverables, including all Intellectual Property Rights therein. Agency expressly waives in perpetuity any and all rights that Agency may have or claim to have under any law relating to “moral rights of authors” or any similar law throughout the universe, or as a result of any alleged violation of such rights in the Final Deliverables. Agency agrees not to institute any action on the ground that any changes, deletions, additions, or other use of the Final Deliverables violate such rights.
   3. Agency grants Client a non-exclusive, limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable, non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any Agency Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Final Deliverables for all purposes. All other rights in and to the Agency Pre-Existing Materials are expressly reserved by Agency.
   4. Agency is hereby granted a non-exclusive, perpetual, worldwide, fully paid up, and royalty free license to use and display all or portions of the Final Deliverables for the sole purpose of promoting Agency’s business.
   5. All Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Client hereby grants to Agency a limited, non-exclusive, non-transferable, non-sub-licensable, and non-assignable royalty free license (i) during the Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement, and (ii) on a perpetual and worldwide basis to use and display any Client Content incorporated into the Final Deliverables for the sole purpose of promoting Agency’s business.
9. Confidentiality
   1. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
   2. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
10. Indemnification. Client will defend, indemnify and hold harmless Agency and its affiliates and their officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from:
    1. Damage to real or tangible, personal property resulting from Client’s acts or omissions; and
    2. The breach of any of Client’s representations, warranties or obligations under this Agreement.
11. Term, Termination and Survival
    1. Term. This Agreement shall commence as of the Effective Date and shall continue in full force and effect for a term of one (1) year (the “Term”), unless sooner terminated in accordance with this Section 11 below. This Agreement shall automatically extend for additional one (1) year terms unless either of the Parties provides written notice to the other Party at least thirty (60) days prior to the end of the then current term of its intention to terminate the Agreement or the Subscription effective at the end of the then current term.
    2. Termination for Convenience. Either Party, in its sole discretion, may terminate this Agreement at any time, without cause, by providing at least thirty (60) days’ prior written notice to the other Party.
    3. Termination for Breach. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
       1. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach.
       2. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing.
       3. Is dissolved or liquidated or takes any corporate action for such purpose.
    4. Termination for Non-Payment. Notwithstanding anything to the contrary, Agency may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for seven (7) days after Client’s receipt of written notice of nonpayment; or (b) more than two (2) times in any twelve (12) month period;
    5. Effect of Termination. Following the termination of this Agreement pursuant to this Section 11, Agency shall promptly invoice Client for any outstanding amounts and expenses due and owing under this Agreement up to and including the date of termination, and Client shall pay all such amounts and expenses to Agency in accordance with the payment terms set forth in Section 2. If a deposit or advance payment has been made by Client for any services that have not and will not be delivered to Client following expiration or termination, Agency shall within thirty (30) days reimburse such payment to Client.
    6. Survival. The rights and obligations of the parties set forth in this Section, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
12. Limitation of Liability
    1. IN NO EVENT SHALL AGENCY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT SHALL AGENCY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AGENCY PURSUANT TO THE APPLICABLE STATEMENT OF WORK.
13. Entire Agreement. This Agreement, including and together with any related Statements of Work constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
14. Notices. Notices shall be in writing. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
    • Notices to Agency:
      ONE400
      Attn: Allen Rodriguez
      8605 Santa Monica Blvd, PMB 18563
      West Hollywood, CA USA 90069-4109
      allen@one400.com
15. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by each Party.
17. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18. Assignment. Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Agency.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. Choice of Law. This Agreement and all related documents are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
21. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than a court of competent jurisdiction in the County of Los Angeles, California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such court.
22. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
23. Force Majeure. The Agency shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Agency including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of fifteen (15) days, Client shall be entitled to give notice in writing to Agency to terminate this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.