Master Consulting and Services Agreement
This is a Master Consulting and Services Agreement (“Agreement”) effective upon the date of engagement, between YOU (“Client”) and Absolute 0 Internet Studios LLC, an Ohio limited liability corporation (“Absolute”) with an address at 335 North Court Street, Medina, Ohio 44256.
Absolute and Client agree as follows:
1.0 ORGANIZATION AND PURPOSE OF AGREEMENT AND STATEMENTS OF WORK
This Agreement shall be implemented through one or more Statements of Work entered into from time to time by Absolute and Client, and provides the basic terms applicable to all such Statements of Work.
Each Statement of Work shall contain (or incorporate as attachments or by reference):
- Client’s business need and objectives for entering into the Statement of Work;
- a listing and a description of the Deliverables to be prepared, including, if applicable, any design specifications;
- payment terms and conditions;
- a project plan, if applicable;
- the delivery schedule of the Deliverables;
- any other applicable information.
Absolute shall not be obligated to perform any work or deliver any Deliverables that are not expressly provided for in a Statement of Work.
1.2 COVENANT OF PERFORMANCE
Absolute and Client agree to render and discharge all duties, obligations and performance that it may assume or undertake pursuant to this Agreement from time to time, subject to, and in accordance with, the terms of this Agreement.
When used in the Contract Documents, the terms listed below shall have the following meanings:
2.1 “Acceptance” or “Accepted” – shall mean, with respect to each Deliverable, notification from Client to Absolute indicating that the Deliverable satisfies the acceptance criteria of Client.
2.2 “Code” – If applicable, and to the extent the Deliverables include computer software created or furnished by Absolute, shall mean computer-programming code. If not otherwise specified in the applicable Statement of Work, Code shall include both object code and source code. Code shall include any maintenance modifications in existence from time to time, and shall include enhancements when added to the Code under a Statement of Work or this Agreement.
2.3 “Contract Documents” – shall mean this Agreement, its Attachments and all Statements of Work issued under this Agreement, any schedules, attachments or addenda referred to in these documents, including any amendments to these documents.
2.4 “Deliverables” – shall mean any Materials procured or prepared by Absolute and delivered and presented to Client.
2.5 “Derivative Work” – shall mean a work which is based upon one or more preexisting works, such as a revision, enhancement, modification, translation, abridgment, condensation, expansion, or any other form in which such preexisting works may be recast, transformed or adapted.
2.6 “Documentation” – shall mean user manuals and all other written materials that relate to particular Deliverables, including materials necessary for design (for example, logic manuals, flow charts, organization charts, policy and procedure manuals and principles of operation), executive overview(s), and text or graphic files subject to display or printout. Documentation shall include any updates or modifications and shall include enhancements when added to the Documentation under a Statement of Work.
2.7 “Error” – shall mean any error, problem or defect resulting from (1) a Deliverable not meeting the specifications listed in the Statement of Work or (2) if the Deliverable contains computer software, an incorrect functioning of Code or Deliverable(s) or (3) an incorrect or incomplete statement or diagram in Documentation, in each case if such error, problem or defect renders the Code or Deliverable(s) inoperable, causes the Code or Deliverable(s) to fail to meet the specifications thereof in any significant respect or causes the Documentation to be inaccurate or incomplete in any significant respect.
2.8 “Materials” – shall mean Code (if the Deliverables contain computer software), Documentation, other written materials or tangible or intangible items, and machine readable media with Code or Documentation recorded thereon, or any combination of the foregoing and all information embodied therein or disclosed thereby, excluding any of Absolute’s proprietary methodologies, techniques and tools (including conversion tools) and any other pre-existing work owned by Absolute.
2.9 “Services” – shall mean the furnishing of labor, time, or effort by Absolute in the preparation and delivery of the Deliverables listed in the applicable Statement of Work.
3.0 PROCEDURE FOR ENTERING INTO STATEMENTS OF WORK
Each Statement of Work issued under this Agreement shall become effective only when executed by the parties. Each Statement of Work entered into under this Agreement shall be construed to incorporate the provisions of, and to be governed by, this Agreement and shall be considered a part of this Agreement.
4.0 CHANGES TO CONTRACT DOCUMENTS
4.1 MUTUAL AGREEMENT
Either party may propose changes to Contract Documents. Either party may at its sole option accept or reject changes proposed by the other party and any such proposals not accepted by signing as authorized in this Section 4.0 shall be deemed rejected.
4.2 MATERIAL INCREASES OR DECREASES
In the event that either party proposes changes which are not anticipated in a fixed price negotiated between the parties and which increases or decreases Absolute’s cost or work effort, Absolute or Client shall propose equitable adjustment in payments and schedule. Upon acceptance by Absolute and Client of such adjustment, Absolute will proceed with the proposed changes. Otherwise, Absolute will have no obligation to perform any additional work. The parties agree to negotiate in good faith any such adjustments, and agree to accept (by signature), an increase or decrease in payment.
4.3 AUTHORITY TO MAKE CHANGES
All changes to any Contract Document may only be made by a written amendment signed by each party. Amendments implemented by a signed Statement of Work shall be effective only with respect to that Statement of Work.
5.1 MODES OF PAYMENT
Each Statement of Work shall set forth the fees and the mode of payment (e.g., fixed price or a hourly, daily or weekly rate) for performance rendered by Absolute under the applicable Statement of Work.
5.2 INVOICES AND PAYMENT
Unless otherwise indicated in the applicable Statement of Work, Client shall pay Absolute when a Deliverable is completed and Accepted. Invoices shall be due and payable thirty (30) days after receipt by Client. Any balances outstanding beyond thirty (30) days shall accrue interest at the rate of 1.5% per month or portion thereof until paid in full.
6.0 OWNERSHIP AND RIGHTS
6.1 SOFTWARE AGREEMENT AND LICENSING
See “Software License Agreement”.
6.2 TREATMENT OF THIRD PARTY MATERIALS
In rendering performance pursuant to the Contract Documents, Absolute shall comply at all times with all use and copying restrictions and obligations of non-disclosure applicable to Third-Party Materials that may be involved, whether as preexisting works in the preparation of a Derivative Work, or as part of the development environment used by Absolute in connection with a Deliverable.
Notwithstanding the foregoing, if Client provides Derivative Work or other third party materials to Absolute, Client warrants and represents that it has secured all rights to such materials and will defend and indemnify Absolute, its successors and assigns, from any claims associated with the use of such work or materials pursuant to Section 9.
7.0 INFORMATION EXCHANGE
It is the intention of Client and Absolute to exchange from time to time such information as may be essential for the accomplishment of the objectives of each Statement of Work.
7.2 PRIVATE INFORMATION
“Private Information” shall mean all information disclosed by one party to the other which relates to the disclosing party’s past, present or future research, development or business activities, as well as any other trade secret, information, data, know how or knowledge which is not known to the general public (including, but not limited to financial information, plans or strategies, customer lists, supplier lists, price lists, product information, designs, systems, processes or other information dealing with the disclosing party’s customers, services or products). In addition, Private Information shall include, (1) any unannounced product(s) or service(s), (2) the terms, conditions and subject matter of the Contract Documents, (3) all information and reports that may be generated by the disclosing party pursuant to any Statement of Work, (4) interim reports and work product that may be generated in association with the Contract Documents, (5) all Deliverables and (6) any other information or Materials designated as “Private.” Private Information will not be deemed to include information that is (1) publicly available otherwise than by a breach of this Agreement or becomes so in the future without restriction, (2) rightfully received by the receiving party from third parties and not accompanied by private obligations, (3) already in receiving party’s possession and lawfully received from sources other than the disclosing party, (4) independently developed by receiving party, (5) approved for release or disclosure without restriction by the disclosing party in writing or (6) legally required to be disclosed. The party claiming any of the above exceptions has the burden of proving its applicability.
All Private Information shall be held and protected by receiving party in confidence and not used by receiving party for its own benefit or purposes or for the benefit or purposes of any other third person or entity. The receiving party shall not disclose, copy or make available any Private Information to any other person or entity. The receiving party shall use all reasonable efforts to protect the privacy of such Private Information after its receipt. Neither party will remove or deface any notice of copyright, trademark, logo or other proprietary notice of the other party appearing on any original or copy of the other party’s Private Information. Each party acknowledges that the foregoing covenants are reasonable and necessary to protect the other party and its business. If either party engages in any activity in violation of these restricted use and disclosure obligations, it being understood that the other party will be irreparably harmed and have no adequate remedy in money or damages, the other party shall, in addition to any other remedies available to it, be entitled to an injunction, without bond, by any competent court of equity enjoining and restraining the party from continuance of such activity. Additionally, if either party engages in any activity in violation of the provisions of this Agreement, that party agrees to indemnify and hold harmless the other party from any and all losses, and/or expenses incurred by the other party as a result of such violation. Waiver by the other party of the breach of any provision in this section by a party shall not operate or be construed as a waiver of any subsequent breach by the party. These obligations shall be considered an honorable undertaking by both parties and shall be construed liberally for the purpose of giving effect to the parties’ intention of protecting each other’s trade secrets, confidential information, and Private Information. If either party becomes legally obligated to disclose any of the other party’s Private Information, the party subject to the obligation shall notify the other party in writing promptly and shall cooperate with the other party at the other party’s expense in seeking a protective order or other appropriate remedy. Each party’s Private Information shall remain its own property. Upon the request of the other party, each party shall return all the other party’s Private Information or destroy it and provide the other party with written certification of such destruction, except for archival and backup copies that are not readily available for use and business records required by law to be retained. The obligations under this section shall survive the expiration or termination of this Agreement.
8.0 LIMITED WARRANTY ON DELIVERABLES
Absolute represents and warrants that Deliverables provided to Client pursuant to any Statement of Work that remain unaltered by Client or any third party, (1) have been or shall be prepared by Client with professional diligence and skill, (2) will, as of the date of Acceptance, conform in all material respects to the specifications and requirements set forth or incorporated in the Statement of Work, and (3) if the Deliverables contain computer software, will, as of the date of Acceptance (to the extent appropriate), function on the machines and with the operating systems for which they are designed.. In the event of a breach of the foregoing warranty, Absolute will correct any Error so as to bring the Deliverable into compliance with its specifications and requirements. Client shall have no other remedy in the event of any such breach. Any claim for breach of the foregoing warranty must be made by written notice to Absolute within 365 days of Acceptance for the Deliverable.
Other Representations and Warranties Disclaimed. EXCEPT AS PROVIDED IN THIS ARTICLE 12, ALL PRIOR WARRANTIES, CONDITIONS, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY SUPERSEDED, EXCLUDED AND DISCLAIMED.
9.1 SCOPE OF INDEMNIFICATION
Each party agrees to indemnify, defend and hold harmless the other party from all third party claims for damages because of bodily injury (inclusive of death) and/or property damage or infringement of an intellectual property right caused by or arising out of the acts or omissions of the agreeing party or its employees, agents or subcontractors. Either party claiming the benefit of this obligation shall notify the other party immediately of any claim and shall cooperate with the other party in investigating and defending such a claim.
10.0 LIMITATION OF LIABILITY
Absolute shall have no indemnity obligation for claims of infringement resulting from any combination, operation or use of any Deliverable with any programs or equipment not supplied by Absolute or not specified in the Contract Documents for such purpose.
In no event shall Absolute or any of its subcontractors, employees or representatives be liable for any consequential, indirect, punitive, incidental or special damages, whether foreseeable or unforeseeable (and whether or not that party has been advised of the possibility thereof), whether based upon lost goodwill, lost profits, loss of use of money, loss of data or interruption in its use or availability, stoppage of work, impairment of assets or otherwise arising out of breach of any express or implied warranty, breach of contract, negligence, misrepresentation, strict liability in tort or otherwise, and whether based on any Section of this Agreement, any transaction performed or undertaken under or in connection with this Agreement or otherwise.
Absolute’s and its subcontractors’, employees’ and representatives’ liability for damages, regardless of the form of action, shall in any event be limited to the aggregate amount (including expenses) paid by Client to Absolute for the services performed (including any Deliverables) by Absolute in respect of the relevant Statement of Work. The limitation of liability in the previous sentence shall not apply, however, to the indemnification, defense and hold harmless obligations found in Section 13.1. As to the indemnification, defense and hold harmless obligations set forth in the first paragraph in Section 13.1, the aggregate amount limitations in this paragraph shall not apply to Vendor and their subcontractors’, employees’ and representatives.’ As to those obligations set forth in second paragraph in Section 13.1,.
11.0 TERM AND TERMINATION
11.1 STATED TERM
This Agreement shall be effective upon the date of engagement and shall remain in force until terminated as provided in this Agreement.
11.2 TERMINATION OF AGREEMENT
Either party may terminate this Master Consulting and Services Agreement upon not less than thirty (30) days’ written notice to the other party; provided, however, this Agreement shall continue to remain in effect with respect to any Statements of Work until they are themselves terminated and/or performance under the Statement of Work is completed.
11.4 TERMINATION FOR CAUSE
Either Client or Absolute shall have the right to terminate some or all of the Contract Documents upon fifteen (15) days prior written notice, so long as it is not itself then in breach or default of any material provision or requirement of any Contract Document, in the event that either (1) the other party breaches or defaults in performance of any material provision or requirement of any Contract Document, if such breach or default is not cured within those fifteen (15) days after the other party has received the notice of breach or default or (2) in its reasonable judgment, the other party is unable or about to become unable to pay its debts as they become due.
In the event of any termination of this Agreement, the Sections 2.0, “DEFINITIONS,” 6.0, “OWNERSHIP AND RIGHTS,” 7.0, “INFORMATION EXCHANGE,” 8.0, “LIMITED WARRANTY ON DELIVERABLES,” 9.0, “INDEMNIFICATION,” 10.0, “LIMITATION OF LIABILITY,” 11.0, “TERM AND TERMINATION,” AND 12.0, “GENERAL,” shall survive and continue in effect and shall inure to the benefit of and be binding upon the parties and their legal representatives, heirs, successors and assigns.
12.1 NOTICE OR PAYMENTS: Any notice or payment required or permitted to be made or given by either party hereto pursuant to any Contract Document will be deemed to have been given when sent in the case of telecopy or personal delivery, and within three (3) days of being deposited in the case of the United States mail postage prepaid, other commercial courier, or a similar reliable delivery method, addressed as set forth below or to such other address as a party shall designate by written notice given to the other party.
In the case of Absolute:
Absolute Internet Studios, LLC
Attention: Jason Goodman
335 North Court Street
Medina, Ohio 44256
12.2 INDEPENDENT CONTRACTOR
Absolute is and shall remain an independent contractor with respect to all performance rendered pursuant to the Contract Documents. Neither Absolute, nor its employees, subcontractors or agents shall be considered an employee, partner, agent, legal representative or joint venture of Client for any purpose.
Absolute shall have sole responsibility for the payment of all taxes and duties imposed by all governmental entities (other than sales and excise taxes), as they pertain to Absolute’s duties, obligations and performance under the Contract Documents.
If Client is required to pay any sales, use, property, value-added, or other federal, state or local taxes based on a service provided under this Agreement, then such taxes shall be billed to and paid by Client.
12.4 FORCE MAJEURE
Neither party shall be held liable for failure to fulfill its obligations under the Contract Documents, if such failure is caused by flood, communications failure, extreme weather, fire or other natural calamity, acts of governmental agency, or similar causes beyond the control of such party.
Subject to Section 10.3, no actions, regardless of form, arising out of or in connection with the transactions covered by any Contract Document may be brought by Client more than one (1) year after the Deliverable has been tendered to Client. Client agrees that nothing contained in this section shall be construed as extending or in any manner affecting the warranty provision contained in Section 12.2 of this Agreement.
Neither party may sell, transfer or assign, any right or obligation set forth in the Contract Documents without the prior written consent of the other party which consent shall not be unreasonably withheld. Any act in derogation of the foregoing shall be null and void.
12.7 GOVERNING LAW
The validity, construction and performance of all Contract Documents will be governed by the substantive law of the State of Ohio.
Each Statement of Work is intended to constitute an independent and distinct agreement of the parties, notwithstanding the fact that they each shall be construed to incorporate all applicable provisions of this Agreement. If any provision of any Contract Document is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of such Contract Document will remain in full force and effect. The termination, rejection or unenforceability of any Statement of Work or other Contract Document, or any part thereof, shall have no effect on the validity and enforceability of all remaining terms of this Agreement and all other Contract Documents.
12.9 ENTIRE AGREEMENT
The provisions of the Contract Documents, as in effect from time to time by their terms, constitute the entire agreement between the parties and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the Contract Documents. Any terms contained in Client’s invoices, acknowledgments, shipping documents or other forms that are inconsistent with or different from the terms of the Contract Documents shall be void and of no effect.
12.10 PUBLICITY; REFERENCES
Client expressly permits Absolute to use Client’s name and trademarks in advertising and promotional materials for the sole purpose of advancing Absolute’s business development interests.
This Agreement may be executed in separate counterparts, which together shall constitute a single instrument.
12.12 DISPUTE RESOLUTION
All disputes arising under this agreement or any Statement of Work that cannot be resolved by good faith negotiations between the parties shall be resolved by arbitration pursuant to the rules and procedures of the American Arbitration Association. A final arbitration decision may be entered as a final judgment in a court of competent jurisdiction. The parties hereby waive the right to pursue any and all claims, causes of action or other demands in a court of law except as is required to enforce an arbitration decision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly Authorized Representatives on the dates indicated.