- Services. The following terms and conditions constitute the agreement (“Agreement”) between all clients and Emplicit, Inc. (“Company”) a Washington State Corporation with its principal offices located at 4730 University Way NE, Ste-104 #2092, Seattle, WA 98105. This Agreement shall apply to the delivery of services, support, and functions as further described in Statements of Work (SOW) that may be proposed and approved by the parties. Any such approved SOW shall be incorporated herein by reference (the services and functions described in any SOW are hereafter referred to as the “Services”).
- Fees. As compensation for Services, Client shall pay a fee that is agreed to and in accordance with the terms detailed in the SOW. Unless otherwise stated within the SOW, all work is billed at $250 per hour (the “Standard Hourly Rate”).
- Client Approval. Upon a Client’s representative approving any work, or prospective work (including, but not limited to, design, functionality, etc.), such approval shall be binding upon Client. Subsequent edits and change orders to previously approved work are out of scope, and will be billed at the rate outlined in the SOW or the Standard Hourly Rate.
- Client Communication and Project Management. In order to avoid miscommunication, Client will provide all edits, approvals and requests to Company in writing, via email, before implementation. If Client wishes to review edits via phone after they are emailed, a time will be confirmed in advance.
- Progress Reports. Company will provide Client with updates via email and phone as work progresses.
- Change Orders and Additional Client Requests. Should Client request Company to perform services or tasks that are not provided for within the SOW or within this Agreement, Company will notify the Client and the requested work will trigger a change order. Change orders will be subject to additional fees. In such case, Company will provide Client with a written time and cost estimate for the additional work for its review. Client will be charged at the rate outlined in the SOW, if applicable, for any work performed pursuant to a change order. Once a change order is signed by both parties, it will be incorporated into this Agreement and have the same legal effect as each and every SOW that is incorporated into this Agreement. Notwithstanding the foregoing, in the event additional time, above the allocated hours set forth in the SOW are incurred by Company as a result of Client’s requests, Client shall be responsible for payment of all additional hours at the rate set forth in the SOW, even if no change order is executed by the Client.
- Client Materials. Client shall retain ownership of all content and materials provided to Company pursuant to this Agreement. Client takes full responsibility for any content (including without any limitations graphics, audio, copy text, video, and images) provided to Company to be used in this project. Client represents and warrants that it has full rights to use all content and materials provided to Company. Client indemnifies and holds harmless Company from all damages, costs and expenses, including but not limited to, reasonable attorney’s fees, incurred by Company as a result of a claim or assertion that content and/or material provided by Client may have violated the rights of another party.
- Client Caused Delays. In order to complete Client’s project in a timely fashion, Company has allocated personnel to perform work at scheduled times in accordance with a project timeline. In the event Client fails to deliver content, images, directional notes, approvals or other required information to Company by the dates specified in the project timeline, all subsequent deadline and project milestones will be postponed accordingly. Furthermore, Client shall pay Company all amounts that would have been due to Company if Client had not failed to provide such content, images, directional notes, approvals or other required information (even if such milestone, etc. has not yet been achieved). Under no circumstances shall a payment be delayed due to Client’s failure to provide content. In the event Client fails to deliver content, images, directional notes, approvals or other required information to Company by more than five (5) business days after the dates specified in the project timeline, subsequent deadlines may be postponed for lengthier durations due to Company work personnel reallocation and rescheduling. In the event Client fails to deliver content, images, directional notes, approvals for more than two (2) months after dates specified in the project timeline, final payment will be due, billed by the hour (not by the project), for all work completed to date and the project will be put on hold.
- Loss and/or Damages. (a) In no event will Company be liable for any special, incidental, indirect or consequential damages whatsoever (including, but not limited to, damages for loss of business profits, business interruption or any other pecuniary loss) arising out of the services provided by Company. Notwithstanding any damages that Client might incur for any reason whatsoever, the entire liability of Company under any provision of this Agreement and Client’s exclusive remedy shall be limited to the lesser of the fee actually paid by Client or Client’s actual damages. The provisions herein shall apply to the maximum extent, even if any remedy fails its essential purpose. (b) In the event that hosting is a part of this Agreement, the fee for the hosting services will be invoiced monthly, quarterly or annually per the Client’s request, provided in writing. The third party hosting service provider shall be responsible for internet accessibility and all hardware. The hosting service provider is an independent third party not controlled or directed by Company. Accordingly, in no event will Company be liable for any direct, general, special, incidental, indirect or consequential damages whatsoever (including but not limited to loss or damage to data, damages for loss of business profits, business interruption, loss of information, loss of physical goods, or any other loss) (collectively, “Damages”) arising out of the use, limited use of, or inability to use the work provided by Company due to problems (including but not limited to errors, delays, deletions, malfunctions, service interruptions, etc.) associated with the functions of the hosting service provider. Under no circumstance will Company have any liability for any Damages incurred by Client as a result of downtime that Client’s Amazon storefront, product listing(s), or any other managed digital platform website may experience regardless of the cause of such downtime nor shall Company have any liability for Damages resulting from the marketing services Company provides to Client. (c) For purposes of this Agreement, special, incidental, indirect 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 special, incidental, indirect or consequential damages of any kind categorized as special, incidental, indirect or consequential damages under the law of the State of California.
- Ownership of Work. All Services will become the property of the Client upon full payment of all amounts due and owing of all SOWs, change orders and any other agreements between Company and Client . Without limitation of the foregoing, Company hereby acknowledges that all such works and deliverables shall be considered a work made for hire under the United States Copyright Act. To the extent that the works, deliverables or any element thereof does not vest in Client as a work made for hire, Company hereby voluntarily and irrevocably assigns and transfers in whole to Client all right, title and interest in and to such works and deliverables and the results and proceeds thereof to the extent that Company has, had or will have any interest therein, including, without limitation, all copyrights and renewals and extensions of copyright therein. Except however, Company may retain ownership of certain generally applicable (but not Client-specific) source code, in which case the Client is granted an irrevocable, non-exclusive, worldwide, royalty-free license to use such source code owned by Company. Additionally, the Client’s work may contain software and other property licensed by third parties, in such event the terms of such third party license shall control. Client hereby authorizes Company to use and display Client’s trade names, logos and any other identifying marks of Client (whether or not such marks are trademarked or otherwise legally protected) along with the work product produced by Company for Client on Company’s website and/or Company’s other marketing materials. Until all amounts due and owing of all SOWs, change orders and any other agreements between COMPANY and Client are paid in full, COMPANY may, in its sole discretion, withhold any and all work performed and deliverables to Client.
- Indemnification. Company agrees to indemnify, defend and hold harmless Client from and against any claims based on an allegation that the deliverables infringe any United States patent; provided, however, that this obligation to indemnify, defend and hold harmless shall not apply to the extent that claims based on an allegation of infringement arise out of or relate to any (a) Client provided materials (including software), designs, specifications or information incorporated into the deliverable, (b) changes to the deliverables that are not made by Company, or (c) the combination of the deliverables with products or services not provided by Company. Client must promptly notify Company in writing of any such claim and give Company authority and such assistance and information as is available to Client for the defense of such claim. Notwithstanding the foregoing, Company shall have no liability to Client nor any indemnification obligations to Client in the event such liabilities, damages, losses, expenses, demands, suits, or judgments arise out of a “patent troll,” “patent holding Company,” “patent assertion entity,” “non-practicing entity” or any other similar type entity or individual.
- Monthly Retainer Plan. In the event that a monthly retainer is a component of this Agreement, the Client acknowledges that upon the execution of this Agreement Company will allocate substantial personnel and equipment resources to the Client. Therefore, the term for service of the monthly retainer will be a one-year commitment by the Client. Following expiration of the one-year term, the monthly retainer will automatically renew for an additional one-year term. Company will provide Client at least sixty (60) days prior written notice of any increase in the fee for monthly services before a new term commences. Company shall allow Client to rollover the unused portion of the retainer for up to sixty (60) days so long as the unused portion of the retainer in any given month is not due to Client Caused Delays as outlined in Section 8 above.
- Adherence to Amazon and other Marketplace Terms of Service. (a) For Clients selling through Company’s Amazon Seller Central Account, Company shall not perform any service which at Company’s sole discretion, does not adhere to Amazon’s Terms of Service. Should Company produce work that either becomes non-compliant through a rule change or is later discovered to be non-compliant for any reason, Client shall be liable for all work necessary to become compliant at the hourly rates outlined in the SOW. (b) For clients selling through their own Amazon Seller Central account or any other marketplace account, if Company is informed any action contravenes Amazon or any other marketplace Terms of Service, the time to remedy, re-list, or resolve cases will be charged as an additional fee, on a time and materials basis.
- Expenses. Client will be responsible to pay the expenses of any resources it requests the Company to purchase, such as stock photos, fonts, videos, audio files, third party licenses or other media assets. Client may choose to purchase these items directly and provide them to Company for use on their project. Client will reimburse Company for any additional expenses including time related to procurement, travel, copying, duplicating, shipping, and postage. Company will request Client written approval for all expenses over $250.00.
- Warranty. Company warranties its work for a period of 30 days to be free of bugs and errors due to workmanship. In the event of bugs or errors due to workmanship, Company shall correct such problems, but shall not refund any amounts paid to it. The 30-Day warranty period is valid only for projects that are hosted and uploaded to the live servers by Company. This Warranty will be waived if the client requests or has access to Amazon site servers.
- Original File Access. In order to receive access to original files. Including but not limited to Amazon Flat File, design files, and copy documents. Client will sign a document exempting Company from any and all liability for the website or from any and all issues that may result on in the marketplace the server or with any other software running on that server caused by having granted such access to Client. File Source Code Access will not be granted to the Client until and unless all outstanding payments are received.
- Invoices. Invoices are due upon receipt, unless otherwise stated in the SOW. Accounts thirty (30) days past due are subject to a one (1) percent finance charge accrued per month on the outstanding balance. Client agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees, court costs and other expenses of collection resulting from any default by Client in any of the terms hereof.
- Non-Solicitation. During the term of this Agreement and continuing until the second anniversary of the termination of this Agreement, Client agrees that without the written consent of Company, it shall not solicit or hire any employee, agent or consultant of Company who was employed or retained by Company during the term of this Agreement, as an employee, agent, independent contractor, project term worker, or in any other capacity. In the event that a Company employee or consultant is hired in any capacity within the second anniversary of the termination of this Agreement, Client shall be liable to and pay Company monetary damages equal to two years of that agent’s, employee’s or consultant’s total compensation paid by Client, which, even if not an annual salaried position, shall be computed to as such for purposes of this paragraph.
- Non-Disclosure. In consideration of a party disclosing Confidential Material (as such term is defined below) (the “Disclosing Party”) to the other party (the “Receiving Party”), the parties agree as follows:
(a) Use Restrictions (i) The Receiving Party shall keep the Confidential Material strictly confidential, and shall use the Confidential Material solely for the purpose of providing the services set forth in this Agreement and Statement of Works. Access to the Confidential Material by the Receiving Party’s employees and advisors shall be on a strict need-to-know basis (provided that all such employees and advisors are first informed of the confidential nature of the Confidential Material and agree to keep such information strictly confidential). The Receiving Party shall be responsible for any breach of this Agreement by any of its employees and advisers. (ii) The Receiving Party shall not, without the prior written consent of the Disclosing Party, disclose to any other person the fact that Confidential Material has been made available to the Receiving Party. (iii) Upon written request of the Disclosing Party, the Receiving Party will promptly deliver to the Disclosing Party all Confidential Material (and all copies thereof) furnished to the Receiving Party or its advisers by or on behalf of the Disclosing Party, and will destroy all Confidential Material prepared by the Receiving Party. All Confidential Material shall remain at all times the sole and exclusive property of the Disclosing Party and the Receiving Party shall acquire no rights in or to such Confidential Material by reason of its disclosure hereunder. Notwithstanding the return or destruction of Confidential Material, the Receiving Party will continue to be bound by its obligations of confidentiality and other obligations hereunder.
(b) Confidential Material. (i) The term ” Confidential Material” means all information provided by the Disclosing Party to the Receiving Party, including, but not limited to, without limitation information concerning the business, financial condition, operations, assets, liabilities, trade secrets, know-how, business plans, technical specifications, product design, pricing, search term reports, keyword research, customer lists and marketing plans and strategies of the Disclosing Party, as well as all notes, analyses or other material prepared by the Receiving Party which contain, reflect or are based upon, in whole or in part, the information furnished to the Receiving Party. (ii) The term “Confidential Material” does not include information which was (1) in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure by the Disclosing Party as shown by Receiving Party’s files and records immediately prior to the time of disclosure, (2) acquired by Receiving Party from a third party which was not, to Receiving Party’s knowledge, under an obligation to the Disclosing Party not to disclose such information, or (3) which is or becomes publicly available through no breach by Receiving Party of this Agreement. Notwithstanding the foregoing, it is understood that the Company has many products under development which may be the same or similar as the Disclosing Party’s “Confidential Material”. Therefore, any trade secrets, know-how, business plans, technical specifications, product design and marketing plans and strategies developed by Company (or its other clients) which may be the same or similar as the Clients “Confidential Material” shall not be included in the definition of the Disclosing Party’s “Confidential Material”. - Insurance. Company shall maintain in full force and effect during the term of this Agreement, insurance policies deemed sufficient to adequately mitigate our business risk.
- Governing Law. This Agreement shall be deemed made in, and shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of conflicts of law. Any dispute, controversy or claim arising out of or relating to this Agreement or to the breach, termination, or invalidity of this Agreement (collectively, “Disputes”) shall be settled only by an action or proceeding commenced in the Federal or California courts located in San Diego County; and the Client consents to jurisdiction over it by, and exclusive venue in, any such court for any Disputes.
- Termination. This Agreement may be terminated as follows: If the SOW is retainer based, then upon client’s 60-day prior written notice to COMPANY, client may terminate this Agreement. Client shall be responsible to pay the monthly retainer for the 60-day period following Client’s written notice. In the event that Client exceeds the allotted monthly hours, then such additional amounts for the exceeded hours shall be due and owing as well. If the SOW is a project, then Client can terminate at any time. COMPANY shall retain the amount that Client has previously paid to COMPANY. Any amounts due and owing by Client to COMPANY shall be immediately paid to COMPANY. COMPANY shall not provide any refund to Client. Client will be entitled to designs and mockups, but will not receive any code unless the entire amount set forth in the project SOW is paid in full. In the event Emplicit is earning compensation based upon success fees (such as percentage of sales) and Client terminates for convenience, Client understands Emplicit has invested resources in the success of the Client business and Client shall be liable to and pay Company a monetary separation fee equal to 12 months of the most recent invoice prior to the Client providing notification of termination.
- Entire Agreement. This Agreement constitutes the entire and final Agreement between the Parties and supersedes any and all prior oral and written agreements or discussions. Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect.
- Attorney Fees and Costs. In the event any lawsuit or litigation is initiated, the prevailing party shall be entitled to its reasonable attorney fees and costs, through and including any costs of appeal. This covenant shall survive the expiration or early termination of this Agreement.
- Conflict. If there is any conflict between the provisions of this Master Service Agreement and the SOW, the provisions of the SOW shall control.
- Written Notice. Email is an acceptable form of communication under each and every provision of this Agreement.