Master Services Agreement – Jason Hunter Design

THIS MASTER SERVICES AGREEMENT ("Agreement") is made and entered into this day ("Effective Date noted on footer") by:

{{recipient_company_name}} (hereinafter "Client")

and

JasonHunter Design, LLC (hereinafter "JHD")

Jason Bass jason@jasonhunterdesign.com 855.429.2959 www.jasonhunterdesign.com

WITNESSETH THAT:

WHEREAS, CLIENT desires to engage JHD from time to time pursuant to one or more Work Statements ("Work Statement") to provide services further defined in section 1 below and; WHEREAS, CLIENT and JHD mutually desire to set forth in this Agreement certain terms and conditions applicable to all such engagements covered under various Work Statements. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

Section 1. DEFINITIONS

When used in this Agreement and in each Work Statement issued hereunder, the capitalized terms listed in this Section 1 shall have the following meanings:

SERVICES

"Services" means the obligations of JHD under all the Sections of this Agreement and all consulting, development, programming, conversion, management, operations, and other services to be performed by JHD pursuant to each mutually agreed upon and executed Work Statement (each a "Work Statement"). Each Work Statement entered into by the parties shall reference this Agreement and shall be made a part of this Agreement; provided, however, the contents of any Work Statement shall not take precedence over any conflicting provision in this Agreement.

AFFILIATE

“Affiliate” means any entity controlling, controlled by or under common control (either directly or indirectly) with JHD, as applicable. Affiliate can also mean a third party who may or may not be related to JHD, but has proved responsible and trustworthy.

EMPLOYEE

“Employee” may refer to an actual employee of JHD or an Affiliate of JHD

CONFIDENTIAL INFORMATION

“Confidential Information” means: (i) non-public and/or proprietary information (including, without limitation, written, oral, visual or electronic information) owned, provided or disclosed by a disclosing party (regardless of whether in connection with this Agreement or otherwise), including, without limitation, trade secrets and formulae, (ii) all analyses, compilations, data, studies or other documents prepared by the recipient containing, or based in whole or part on, any such information, or reflecting its review of, interest in, or relationship with, the disclosing party and (iii) the terms of this Agreement.

DOCUMENTATION

“Documentation” means user manuals and other written materials that relate to particular services, including materials useful for design or workflow management (e.g., logic manuals, flow charts, and principles of operation).

Section 2. WORK STATEMENT

Work Statement - shall mean a purchase offer of CLIENT, a proposal of JHD, or other written instrument that meets the following requirements:

Includes a statement similar to: "This work is being performed under a Master Services Agreement (MSA)”.
Description and/or specifications of the services to be performed for CLIENT;
The amount (described by hours or cost), schedule, and method of payment; and

In the event of conflicting or ambiguous terms and conditions between this Agreement and the Work Statement, this Agreement shall control.

CONTRACT ADMINISTRATION

Upon execution of this Agreement, each party shall notify the other party of the name and contact information of its Contract Coordinator. For JHD the Contract Coordinator is usually the “Relationship Manager”. The Contract Coordinators of each party shall be responsible for arranging all meetings, visits, and consultations between the parties that are of a non-technical nature. The Contract Coordinators shall also be responsible for receiving all notices under this Agreement and for all administrative matters such as invoices, payments, and amendments.

ISSUANCE OF WORK STATEMENTS

The initial Work Statement(s) agreed to by the parties are subject to this Agreement. Additional Work Statements, regardless of whether they relate to the same subject matter as the initial Work Statement(s), would be executed upon written execution by authorized representatives of both parties.

SECTION 3. CHANGES TO SERVICE

Either party may, at any time, request changes to a Work Statement by submitting a written change request which identifies in reasonable detail each of the following:

Summary of the requested change
Why the change is needed
When the change is needed

Changes to the Work Statements or in any of the specifications or deliverables under the Work Statements shall become effective upon written acceptance from both parties.

SECTION 4. NOTICE OF DELAY

JHD agrees to notify CLIENT promptly of any factor, occurrence, or event coming to its attention that may affect JHD's ability to substantially perform any Work Statement issued under this Agreement, or that is likely to occasion any material delay in delivery of Deliverables. Such notice shall be given in the event of any loss or reassignment of key employees, loss of electricity/internet, or major equipment failure.

SECTION 5. SERVICE FEES & EXPENSES

Amounts and modes of payment for all services to be performed and Deliverables shall be set forth in each Work Statement. The parties shall agree to use one or more of the following modes of payment:

TIME, MATERIALS AND EXPENSES

Payment under this Time and Materials basis shall be determined according to the hourly rate determined within each Work Statement. Hourly rates quoted by JHD are subject to change upon 30 days' advance notice, provided that any such change shall have no effect upon rates or charges for work already rendered or scheduled to be rendered as per a Work Statement. Materials (software/hardware, etc) not already owned by JHD but required to be used for this work will be borne by CLIENT. Any direct out-of-pocket expenses required by CLIENT like travel and lodging expenses (for on-site assistance) will be paid by CLIENT.

FIXED PRICE

For services and Deliverables that are not suitable for payment on the basis of Time and Material, the Work Statement may provide for payment on the basis of Fixed Price. If JHD quotes a price for particular services or Deliverables and such a price is specified with qualification in the applicable Work Statement, the amount quoted shall be deemed a fixed price ("Fixed Price"). A Work Statement may provide for payment to be based on a Fixed Price for certain services to be rendered over a specified period of time. Unless otherwise specified in the Work Statement, such payment for periodic services shall accrue on a monthly basis and be prorated for any partial periods.

SECTION 6. PAYMENT TERMS

JHD submits invoices to CLIENT via eMail for payment for work and/or Deliverables at such time or times as payment becomes due under each Work Statement. Invoices shall be due upon receipt, shall be addressed to CLIENT's Contract Coordinator, and shall be submitted no more frequently than monthly for charges due or accruing in each calendar month.

Refunds & Disputes

All services rendered by JHD are non-refundable unless otherwise noted on the Work Statement. This includes, but is not limited to: Initial setup fees, hourly fees, monthly service fees, software development fees and late fees. Billing errors should be reported to "info@jasonhunterdesign.com" within 10 days of receipt.

Non-Payment

Failure to remit payment for services will result in service fees as mentioned on the invoice and suspension of services offered to the CLIENT.

SECTION 7. SITE VISITS

JHD shall, from time to time and upon reasonable notice, allow access to the premises (where the services are being rendered) during normal business hours by CLIENT for purposes of design review, "walkthroughs," and discussions between CLIENT and JHD's management (and or affiliates) concerning the status and conduct of work being performed under any Work Statements issued hereunder; provided, however, all information to which CLIENT is permitted access to shall be deemed Confidential Information and treated as such in accordance with the provisions of this Agreement.

SECTION 8. DELIVERY AND ACCEPTANCE

JHD shall deliver all Deliverables, upon completion, to CLIENT's Technical/Project Coordinator for testing and user acceptance. JHD shall memorialize such delivery in a Delivery Confirmation email. Unless a different procedure for testing and acceptance is set forth in a Work Statement, CLIENT shall commence user acceptance testing following its receipt of the Deliverables. Upon completion of such testing, CLIENT shall issue to JHD within the time indicated in the Work Statement for acceptance, a notice of acceptance or rejection of the Deliverables. In the event of rejection, CLIENT shall give its reasons for rejection to JHD in reasonable detail. JHD shall use all reasonable effort to correct any deficiencies or non conformities and resubmit the rejected items as promptly as possible.

RESIDUALS

Notwithstanding anything to the contrary herein, the parties and their personnel shall be free to use and employ their general skills, know-how, methods, techniques, or skills gained or learned during the provision of any Services (if such have general applicability beyond the specific Services delivered under the applicable Statement of Work and are not intentionally memorized for the purpose of later recording or use), so long as they acquire and apply such information without disclosure of any Confidential Information of the other party and without unauthorized use or disclosure of the other party's Properties.

LIMITATION OF LIABILITY

JHD’s or CLIENT’s liability for any reason (excluding CLIENT’s liability for payment of JHD’s services fees) and upon any cause of action, whether sounding in tort, contract, or any other legal theory, shall at all times and in the aggregate be limited to the greater of: (a) US$10,000.00, or (b) the last installment paid by CLIENT to JHD under the applicable statement of work. Neither party shall be liable for any indirect, consequential, exemplary, incidental, or punitive damages, including lost profits, even if the party has been advised of the possibility of such damages. The foregoing limitations of liability (including the damages cap and the exclusions set forth in the immediately preceding two paragraphs) shall not apply to the indemnification obligations set forth herein, a breach of the confidentiality agreement, or damages caused by gross negligence, reckless conduct or willful misconduct.

SUBCONTRACTING

JHD shall have the right to subcontract any Services to a third party, an Affiliate or subsidiary of JHD located inside or outside the United States. If requested by CLIENT, JHD agrees to provide all information reasonably requested by CLIENT regarding any JHD Affiliate performing such Services both prior and subsequent to entering into a WORK STATEMENT. No subcontracting, whether to an JHD Affiliate or subsidiary or any other party, shall release JHD from its responsibility for its obligations under this Agreement. JHD shall be responsible for the work and activities of each of its Affiliates/subsidiary and contractors, including compliance with the terms of this Agreement. JHD shall be responsible for all payments to its Affiliates, subsidiaries and contractors. JHD shall promptly pay for all services, materials, equipment and labor used by JHD in providing the Services. JHD shall enter into confidentiality agreements with any subcontractors with provisions at least as restrictive as the provisions of the Confidentiality Agreement entered into between JHD and CLIENT.

DOMAIN NAME MANAGEMENT (if applicable)

Client must agree to the Terms and Conditions of the Registrar for which JHD manage Client domain name. JHD is not responsible for any damages caused by Client domain name expiration, malfunction, or loss.

SECTION 9. RELATIONSHIP OF THE PARTIES

JHD shall be an independent contractor of CLIENT. As between JHD and CLIENT, all persons retained by JHD to perform Services for CLIENT hereunder shall be employees or subcontractors of JHD and shall not be employees of CLIENT. JHD’s employees (or the employees of IT Hand’s subcontractor(s)), if any, shall not be considered employees of CLIENT.

WORK-FOR-HIRE

JHD agrees that the Service(s) have been specially ordered or commissioned by CLIENT, and accordingly, that said Service(s) shall be considered a "work made for hire" and that CLIENT shall be considered the author of the Service(s) and by virtue of this writing, the Service(s) is the sole property of CLIENT free and clear from all claims of any nature relating to JHD's contributions. In the event that: (a) the Service is determined by a court of competent jurisdiction not to be a work made for hire and/or (b) there are any rights which do not accrue to CLIENT as a work made for hire, this Agreement shall operate as an irrevocable grant, transfer, sale and assignment to CLIENT of all right, title and interest, including all copyrights (and all renewals, extensions and revisions thereof) in the aforesaid Service(s), in any media and for any purpose now or hereafter known.

NON-SOLICITATION

CLIENT shall not solicit employment from any of JHD or its Affiliates’ (or subcontractor’s) employees, whose work relates to this Agreement, during the term of this Agreement and for a period of twelve (12) months after termination of this Agreement, without JHD's prior written consent. Correspondingly, JHD shall not solicit work from any of CLIENT’S Customers or Affiliates during the term of this Agreement and for a period of twelve (12) months after the termination of this Agreement, without CLIENT’S prior written consent.

SECTION 10. CONFIDENTIALITY

JHD acknowledges that during the course of working for CLIENT, JHD will have access to certain trade secrets including but not limited to programs, plans, business, financial and personnel information, innovations, records, donor and customer information, and/or specifications owned by CLIENT. JHD agrees that this information will be kept strictly confidential and may only be disclosed to third parties who are subcontractors.

SECTION 11. INTELLECTUAL PROPERTY RIGHTS

RETENTION OF OWNERSHIP

Except for the rights expressly granted to JHD under this Agreement, the CLIENT will retain all right, title and interest in and to the Licensed Technology/Software/Source Code including all worldwide Technology and intellectual property and proprietary rights.

SECTION 12. TERM OF AGREEMENT

The term of this “Agreement” is to commence on the Effective Date and continue until terminated as set forth below.

TERMINATION OF AGREEMENT

Either party may terminate this Agreement upon not less than 90 days notice to the other party. However, this Agreement shall continue to remain in effect with respect to any Work Statement already issued hereunder until such other Work Statement is itself terminated and/or performance thereunder is completed.

SURVIVAL

In the event of any termination of this Agreement, Sections, 9, 10 and 12 hereof 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.

TERMINATION FOR CAUSE

If either party commits a material breach of the terms and conditions of this Agreement, the other party may terminate this Agreement upon ninety (90) days' prior written notice to the defaulting party describing in reasonable detail such breach unless, within such ninety (90) day period after receipt of such Notice, all breaches specified therein shall have been remedied.

SECTION 13. MUTUAL INDEMNIFICATION

CLIENT shall hold JHD harmless from and indemnify and defend JHD and JHD's subsidiaries, affiliates, respective directors, officers, employees, agents and assigns from and against any suits, actions, claims, losses, demands, damages, liabilities and causes of action of every kind or character and nature as well as costs and expenses incident thereto (including reasonable attorneys' fees) which may arise from the negligence, recklessness or intentional conduct of CLIENT. JHD shall hold CLIENT harmless from and indemnify and defend CLIENT and CLIENT’s subsidiaries, affiliates, respective directors, officers, employees, agents and assigns from and against any suits, actions, claims, losses, demands, damages, liabilities and causes of action of every kind or character and nature as well as costs and expenses incident thereto (including reasonable attorneys’ fees) which may arise from the negligence, recklessness or intentional conduct of JHD.

SECTION 14. FORCE MAJEURE

Neither party hereto shall be responsible for any failures to perform its obligations under this Agreement (other than obligations to pay money) caused by an event reasonably beyond its control, including but not limited to, (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or telephone/internet service, or any law, regulation, ordinance, or other act or order of any court, government, or governmental agency. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of the Agreement for more than one (1) month, the parties hereto shall consult with each other to determine whether this Agreement should be modified. The party facing an event of force majeure shall use its best endeavors in order to remedy that situation as well as to minimize its effects. A party experiencing an event of force majeure shall notify the other party as soon as possible after its occurrence.

NO AGENCY

JHD, in rendering performance under Work Statements issued hereunder from time to time, is acting solely as an independent contractor. CLIENT does not undertake by this Agreement or otherwise to perform any obligation of JHD, whether by regulation or contract. JHD working under this Agreement will operate as an Independent Contractor and will not be considered an employee of CLIENT. JHD and CLIENT operations are separate and distinct; nothing in this Agreement creates a joint venture, partnership, or other such relationship between CLIENT and JHD. JHD shall have no right to act on behalf of or to bind CLIENT in any manner. During the term of this Agreement, JHD is free to provide services to other persons, organizations and firms.

MULTIPLE COUNTERPARTS

This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties.

REQUIRED APPROVALS/FURTHER INSTRUMENTS

Where agreement, approval, acceptance, or consent by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. JHD shall execute such further assignments, instruments and documents upon the request of CLIENT as may be reasonably necessary to effectuate the transactions contemplated under this Agreement.

AUTHORITY OF JHD

JHD has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be carried out by JHD hereunder unless otherwise provided herein.

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, United States of America. Venue and jurisdiction of any action regarding this Agreement shall be in the federal court of Georgia, United States of America.

ARBITRATION OR DISPUTE RESOLUTION

In the event a dispute shall arise between the parties to this agreement and associated Work Statements, it is hereby agreed that the dispute shall be referred to Arbitration. This agreement and all transactions contemplated hereby, shall be governed by, construed and enforced in accordance with the laws of the State of Georgia. The undersigned agree that any dispute or disagreement regarding this Agreement or relating to the Agreement shall be resolved by final and binding arbitration conducted in Atlanta, Georgia by the American Arbitration Association pursuant to its applicable rules, using one arbitrator, and that the prevailing party shall be entitled to recovery of the reasonable attorney fees incurred therein. The aggrieved party shall only resort to litigation if in good faith it concludes that alternative means of dispute resolution have failed. Unless requiring immediate injunctive relief, an aggrieved party shall, for a period of at least 30 days before initiating litigation, vigorously and in good faith attempt to pursue dispute resolution.

ENTIRE AGREEMENT

This Agreement and the exhibits annexed hereto, together with the Work Statements issued from time to time hereunder, constitute the entire agreement between the parties. No change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by the party against whom such change, waiver, or discharge is sought to be enforced.

NOTICES

Under this Agreement if one party is required to give notice to the other, such notice shall be deemed given if mailed by U.S. mail, certified first class, postage prepaid. Addresses to be used are those given above, unless changed by written notice.

AMENDMENT

This Agreement may be amended, altered or revoked at any time in whole or in part only through a written instrument setting forth such changes signed by both parties.

SECTION 15. ACCEPTANCE