MASTER SERVICES AGREEMENT
Last Updated: January 22nd, 2019
This Master Services Agreement (the “MSA” or “Agreement”) shall govern the provision of services to the client (the “Client”) by Tailored Fundraising Solutions, LLC (“Tailored”), mutually referred to as the “Parties”. Additional terms, such as the services and deliverables to be provided hereunder and the amount of fees payable are set forth on the agreed upon and signed Statement of Work (the “SOW”) which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written consent of both Parties. In the event of any conflict between the terms of any SOW and the terms of this MSA, the terms of the MSA shall control.
Additional Services, Project Changes
Any services outside the scope of the SOW or changes to previously approved work requested by the Client shall be the subject of an additional SOW or Change of Scope Order to be approved in writing by both Parties. Each such additional SOW or Change of Scope Order is hereby incorporated herein by this reference.
Client will be notified in advance for pre-approval of any additional expenses in excess of those set forth on the SOW. At Tailored’s discretion, Client shall either pay such fees directly to the third-party vendor or reimburse Tailored therefore upon presentation of applicable invoices.
The Client shall pay Tailored for the work performed hereunder as set forth on the applicable SOW. Delays resulting from the action or inaction of Client may result in an adjustment in fees by Tailored, subject to Client approval. Each invoice hereunder is due and payable within 30 days after its invoice date. All rights of the Client herein are conditioned on Tailored’s receipt of full payment. In addition, Tailored may suspend performance of services and withhold delivery of materials until payment in full of all amounts due. Tailored shall not be liable for any damages, losses or liabilities that may arise out of Tailored’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue interest at the rate of 3% per month, or the maximum allowed by law. Tailored may take appropriate action, including legal action, to collect the full amount of all invoices and late payment charges that remain unpaid for more than thirty (30) days from date of invoice. The Client hereby agrees to pay all fees, charges, costs and expenses associated with the collection on unpaid invoices, including but not limited to all attorney’s fees and court costs.
Time of Payment and Late-Payment Charges
In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide or maintain any necessary information and approvals that may be required by Tailored (the “Client Representative”). The Client Representative shall be responsible for coordination and review of Tailored’s services and notifying Tailored of Client instructions, change order requests and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on Client. If after the Client Representative has approved a service, and the Client or any authorized person alters the scope of work or requires additional services, the Client shall pay all fees and expenses arising from such changes and additional services.
Client Obligations and Materials
Tailored’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. Tailored shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under this Agreement.
All copy writing provided by the Client shall be in electronic format suitable for typesetting. Where photographs, illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. The Client shall pay all fees and expenses required to bring nonconforming materials up to such standards. The Client warrants that all assets, concepts, materials, specifications, information and instructions provided by Client or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties.
Approval of Work
Work will commence when the SOW is agreed upon and signed.
Within five (5) business days following receipt of any deliverables, the Client will provide Tailored with either (a) written approval and acceptance of such deliverable (which will not be unreasonably withheld), or (b) a written list of reasonable modification guidelines that will bring the deliverables into compliance with the SOW, in which case Tailored will have thirty (30) days to conduct such reasonable modifications and resubmit the deliverables to the Client as a new deliverable. Each deliverable hereunder will be deemed accepted by the Client if, within five (5) business days of its delivery to the Client by Tailored, Tailored does not receive either of the foregoing written notices.
The Client's written approval of any deliverables, materials, plans or other Work created or produced by Tailored in the course of the provision of the Services, or any cost estimate, will constitute Tailored’s authority to perform, purchase, and publish, and otherwise to do any other act or thing which Tailored considers it reasonable to do in order to carry out its obligations under this Agreement or any SOW.
Tailored is not responsible for delays, errors or omissions resulting from Client’s action or inaction, and will not be liable for any claims related to materials, specifications, and information provided by Client to Tailored.
Tailored will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client's instructions and Tailored will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.
In cases where needed changes to the SOW are identified, a change request will be processed as follows:
(a) A project manager at Tailored will create a Change of Scope Order that documents the relevant information, including: change description, rationale, impact assessment, effort, and associated cost, if applicable, to implement the change.
(b) This Change of Scope Order will be submitted in writing to the Client.
(c) Client can verbally approve the Change of Scope Order or request further changes to the Change of Scope Order.
(d) For approved Change of Scope Orders that exceed the current estimated SOW costs by more than 10%, the project manager at Tailored will incorporate the changes into a ratified SOW for approval and mutual signature by the Parties.
(e) Change of Scope Orders will only be approved once the ratified SOW is mutually signed by both Parties.
Legal Clearances and Indemnification
The Client is responsible for obtaining all legal clearances required for the performance of services hereunder. The Client shall indemnify, defend (at its own cost and expense) and hold Tailored and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Client.
In the event that Tailored incurs any loss or expense (including reasonable attorneys’ fees and/or costs) as the result of any claim, suit or proceeding made or brought against Tailored based upon or relating to any work which Tailored has prepared for Client, which work is either approved by the Client or was based on materials, statements, ideas or instructions from Client, Client agrees to indemnify Tailored and to hold Tailored harmless from and against any such loss or expense. The obligation to indemnify Tailored hereunder shall not be deemed terminated upon cancellation or termination of this Agreement.
Liability of Tailored
Tailored shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Tailored or by Client. Tailored will not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement or the associated SOW.
The services and the work product of Tailored are sold “as is.” In all circumstances, the maximum liability of Tailored, its subsidiaries, affiliates and their directors, officers, employees, development agents, agents, successors, affiliates, contractors, and assigns, to the Client for damages for any and all causes whatsoever, and the Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Tailored. In no event shall Tailored be liable for any lost funding, lost data, lost content, lost profits, business interruption, funding interruption, or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Tailored, even if Tailored has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Confidential Information; Non-Solicitation
Confidential information is that which relates to the Client’s or Tailored’s research, development, trade secrets or business affairs and includes, in the case of Tailored’s confidential information, concepts presented to, but not selected by, the Client; it does not include information that is generally known or easily ascertainable by third parties. Tailored and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. Confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. The Client shall not solicit Tailored’s employees, independent contractors or consultants or engage them in any work independent the Parties’ relationship under this Agreement during the term of the Agreement and for two (2) years thereafter.
Rights, Ownership and Usage
Subject to Tailored’s receiving full payment under this Agreement, Tailored assigns to the Client, without representation or warranty, all rights, title and interest Tailored may have in any work specifically created by Tailored for the Client pursuant to this Agreement, except that:
(a) Tailored may use and distribute such work as part of its portfolio for promotional purposes;
(b) Tailored shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Preliminary Work”) which have been presented to the Client but not included in the final work product. Preliminary Works means all design and code including, but not limited to, concepts, sketches, wireframes, visual presentations, artwork, illustration, interface design, branding, interaction techniques, plugins, functions, code snippets, bug fixes, features or other alternate or preliminary designs, code or documents developed by Tailored and which may or may not be shown and or delivered to the Client for consideration but do not form part of the work. Tailored retains all rights in and to all Preliminary Works. The Client shall return all Preliminary Works to Tailored within thirty (30) days of completion of the services;
(c) Tailored shall own and retain all rights to any technology, technical documentation, inventions, algorithms, software, architecture, logic, navigation, animation files and other source files for deliverables, computer programs, source codes, or other backend and background elements, files and features incorporated into or utilized by the Work (collectively, “Background Technology”). Unless the Parties agree otherwise in a written and signed SOW, Tailored shall retain ownership of any and all Background Technology, including any and all associated intellectual property rights. Use of Background Technology for any other project, on any other website, app or in any other medium shall be subject to additional fees and licenses which may be granted or withheld by Tailored in its sole discretion;
(d) If the Client desires to utilize any of the Work, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, website, app, service, advertisement or any other purpose outside of the scope of the SOW, then the Client shall hire Tailored to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such Work if Tailored declines to do so, and Tailored provides written consent to the Client to hire a third party, and such third party is hired on terms in no way more beneficial than the terms first offered to Tailored.
In providing the Services under this Agreement it is expressly agreed that Tailored is acting as an independent contractor and not as an employee. Tailored and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service. The Client is not required to pay, or make any contributions to, any social security, local, state or federal tax, unemployment compensation, workers' compensation, insurance premium, profit-sharing, pension or any other employee benefit for Tailored during the Term. Tailored is responsible for paying, and complying with reporting requirements for, all local, state and federal taxes related to payments made to Tailored under this Agreement.
Term and Termination
This Agreement shall begin when the Client agrees to and signs the associated SOW and shall continue until the SOW is complete and delivered, or until the Agreement is terminated.
Either Party may terminate this Agreement for any reason upon giving thirty (30) days’ prior written notice to the other Party. Upon termination of this Agreement by the Client without Tailored’s consent, Client shall pay Tailored, in addition to all of the fees earned by Tailored pursuant to the terms hereof, an early termination fee equal to 40% of the total remaining fees payable to Tailored hereunder as specified in the SOW, plus any and all expenses and third-party costs reasonably incurred by Tailored through the effective date of cancellation. At Tailored’s election, any Client delay of work under this Agreement for a cumulative period of more than thirty (30) days without Tailored’s consent shall be considered a termination of this Agreement by the Client.
Governing Law; Jurisdiction
This Agreement shall be interpreted and construed in accordance with the laws of the State of Tennessee. Each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in Davidson County, Tennessee for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any such action or proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees of its attorneys.
Modification of Agreement
Tailored reserves the right to change or update this MSA, or any other of our policies or practices, at any time, and will notify clients by posting such changed or updated terms on this page. Any changes or updates will be effective immediately upon posting to tailoredfundraising.com/msa. Client agrees to be bound by subsequent revisions and agree to review this MSA periodically for changes. Under certain circumstances, we may also elect to notify you of changes or updates to our terms by additional means, such as by sending you an email.
Any and all notices required or permitted hereunder shall be sent by email to email@example.com or by certified mail, return receipt requested, to the address of the party for which intended.
It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided in this Agreement.
This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
Titles and Headings
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
Acceptance of Agreement