Shown below is our master services agreement. It documents our assumptions and sets the ground rules for how we do business. It is intended to be easily understood by the average business person but there are some places where the legalese couldn’t be avoided. We think this document accurately portrays our ethics and morality and invite you to read it in its entirety. If you paid one of our invoices lately, you have already indicated your agreement with this document.
This Master Services Agreement (“Agreement”), made this April 3, 2017 (“Effective Date”), is by and between Already Set Up, Inc. (ASU), a California Corporation located at 701 4th St., Ste. 201A, Santa Rosa, CA 95404, and ___________ (“Client”), having a principal location at _____. For and in consideration of the mutual agreements herein set forth, the parties agree as follows:
During the term of this Agreement, ASU shall apply its skills and experience as applicable and necessary as specified on the proposed Statement of Work (“SOW”). Each SOW will present among other things: project scope, schedule and various tasks to be performed. It will also include a rate for the services to be performed. Each SOW that may be annexed to this agreement is to be considered a valid addendum to this agreement.
ASU resells the website hosting packages of third-party service providers. If you purchase a website hosting package through ASU, we assume no liability and are unable to originate any guarantees for the services the Client purchases. Fees are paid annually and automatically renew. The Client’s hosting package will include a certain amount of storage, bandwidth and/or visitors per month. If Client exceeds any of these allocations, additional fees will be incurred by the Client. Payment is due upon billing.
The Client acknowledges the following: (a) ASU cannot guarantee any particular search engine ranking or placement; (b) submission to the majority of search engines and directories does not guarantee entry; (c) ASU cannot be held responsible for any loss (financial or otherwise) to the Clientʼs business due to an unexpected drop in search engine rankings; (d) the Client authorizes ASU to modify the code of the Clientʼs web pages at ASUʼs discretion including but not limited to keyword density, page titles, meta descriptions and other elements as it relates to increasing search engine rankings; (e) should the Client make changes to any site content that ASU has optimized, the Client understands that these changes may have an adverse effect on search engine rankings; (f) search engine directory submissions are carried out one time only per engine unless otherwise stated. SEO services are typically billed on a monthly, quarterly or annual subscription basis.
Fees are paid via check or ACH (Automated Clearing House) directly to ASU in advance of Client ads running. Client ads will immediately halt when funds are exhausted. Alternative payment methods may be made available in the SOW or can be requested by the Client. Ongoing management of PPC is billed as a subscription service.
Services fees such as Website Hosting, Search Engine Optimization (SEO) and Pay-Per-Click (PPC) management are often subscription based. Subscription services automatically renew 30 days prior to the final bill (Renewal Date) at the same rate for the same duration, setting a new Renewal Date. ASU requires written notice at least 30 days prior to the Renewal Date if the Client intends to terminate or modify the subscription. Subscription fees are due upon billing. ASU reserves the right to terminate subscription services at any time.
Client agrees to pay at the rate specified on the proposed, approved and duly executed SOW. Additional requested services will be compensated at the agreed upon rates in the executed SOW, or unless a new rate is agreed upon in writing, prior to the commencement of the additional work. This could be an additional SOW.
All invoices will be delivered electronically. Client will be notified of a new invoice via email. Invoices are securely stored using a third-party service (Client Portal) which allows the Client to view, download or print the invoices as needed. The Client can request paper invoices via US Postal Service. Paper invoices may incur a fee.
Payment is accepted in the form of check, ACH or credit card. Credit card payments are made by the Client using the Client Portal. All check payments should be made payable to “Already Set Up, Inc.,” at 701 4th St., Ste. 201A, Santa Rosa, CA 95404. All payments will be made in U.S. funds. Payments are due upon receipt of invoice.
Payments delinquent 30 days after its due date will accrue an additional 1.5% penalty for each month of delinquency. ASU, reserves the right to remove web pages from viewing on the Internet until payment is made. If collection proves necessary, the Client agrees to pay all fees incurred by that process. A late charge of $25 will be applied to invoices that require our manual involvement to elicit payment. ASU reserves to right to charge our standard hourly rate for our time spent collecting payment on late invoices.
This Agreement shall be effective as of the Effective Date. This Agreement may be terminated by either party upon written notice to the other. Client is responsible for any unpaid consulting fees and expenses due at the time of a written amendment or termination.
Client agrees to provide ASU with current, complete and truthful information in a timely manner and to fully cooperate with ASU in connection with its performance hereunder. Client understands that decisive, effective, prompt communication will make the project run smoothly and maximize the Client’s budget.
ASU acknowledges and agrees that pursuant to this Agreement, it may have access to confidential information about Client, including without limitation, information and material concerning or pertaining to Client’s business, methods, plans, and/or projects, that such information is confidential and proprietary to Client, and that ASU shall not use, copy, or disclose Client’s confidential information in whole or in part in any manner or to any person, firm, or corporation unless and to the extend such use, copying, or disclosure is necessary to accomplish its services and had been authorized in advance in writing by Client. ASU will receive and hold the Client’s confidential information in the strictest confidence and acknowledges, represents and warrants that it will use reasonable efforts to protect the confidentiality of Client’s information.
Client acknowledges that, in connection with this Agreement, it may receive certain confidential or proprietary technical and business information and materials of ASU, including without limitation preliminary works (meaning all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by ASU, which may or may not be shown and/or delivered to Client for consideration, but do not form part of the final art). The Client, its agents and employees shall hold and maintain in strict confidence all preliminary works.
Upon full payment of the fees due to ASU, all work product that is developed by ASU under this Agreement and delivered to Client (collectively the “Work Product”) shall belong to Client, including all intellectual property rights therein, excluding but not limited to code created by ASU, images licensed by ASU, markup, and creative graphics. However, Client grants to ASU an irrevocable, perpetual, non-exclusive license to copy, modify, distribute and use the Work Product. This license shall be transferrable and sub-licensable by ASU. This license shall not reduce ASU’s obligation to keep confidential all of Client’s Confidential Information.
Upon full payment of the fees due to ASU, ASU hereby grants Client a non-exclusive, perpetual license to execute and perform any ASU materials which are pre-existing the Effective Date, or developed outside of this Agreement, but which ASU delivers to Client in connection with the Work Product, including, but not limited to client-provided images, content
The Client represents to ASU, and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to ASU for inclusion in work product are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend ASU, and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
The copyright of the design of the Client’s website ASU creates remains ASU’s design copyright. Client can use this site for the business or purpose we create it for, move it to any other server and/or modify the code in any way it likes. However, Client cannot use ASU-owned property for other websites by either selling the design or copying our code for another website external to the purpose ASU created the website for (For example, copying the website for another business the Client owns.) unless previously agreed to in writing by all parties. The ASU design notice must appear on the home page of Client’s website. Client can choose the position and font color (so long as it is legible). It is an option for the Client to purchase full design copyright of the website. However, this is not included in our regular website development fees.
Copyright to the finished, assembled work of web pages produced by ASU is owned by ASU. Upon final payment of this contract, the client is assigned rights to use as a website the design, graphics, and text contained in the finished assembled website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client, and remain the property of their respective owners. ASU retains the right to display graphics and other design elements as examples of previous work in their respective portfolios.
Client (or its licensor) will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to them including without limitation any software, methodologies, tools, specifications, techniques, documentation or data that is utilized by ASU in the performance of services and has been originated or developed by Client, its affiliates or by third Parties outside of the scope of the services, or which has been purchased by or licensed to Client, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the services (collectively, “Client Intellectual Property”). Nothing contained in this Agreement or otherwise shall be construed to grant to ASU any right, title, license or other interest in, to or under any Client Intellectual Property (whether by estoppel, implication or otherwise).
ASU (or its licensor) will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to them including without limitation any software, methodologies, tools, specifications, techniques, documentation or data that is utilized by ASU in the performance of services and has been originated or developed by ASU, its affiliates or by third Parties outside of the scope of the services, or that has been purchased by or licensed to ASU, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the services (collectively, “ASU Intellectual Property”). Nothing contained in this Agreement or otherwise shall be construed to grant to Client any right, title, license or other interest in, to or under any ASU Intellectual Property (whether by estoppel, implication or otherwise).
ASU’s relationship with Client is strictly that of an independent contractor and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Nothing contained in this Agreement shall be construed to place the parties in a relationship of partners or joint ventures and neither party shall have the right to obligate or bind the other in any manner.
ASU reserves the right to assign subcontractors to this project to insure quality as well as on-time completion.
ASU’s resources are not and shall not be deemed to be employees of Client. ASU shall be solely responsible for the payment of all compensation to its resources, including provisions for associated taxes, workers’ compensation and any similar taxes associated with resources of ASU’s personnel. ASU’s resources shall not be entitled to any benefits paid or made available by Client to its employees.
During the term of each SOW and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, solicit for employment or employ, whether as an employee or independent contractor, (or accept services provided by,) any employee, officer or independent contractor of the other party who performed any work in connection with, or related to the services under the applicable SOW.
If, in the event Client wants to offer full-time employment to any ASU resource during the term of a SOW, or during a period of twelve (12) months thereafter, Client shall make such request to ASU in writing and will include agreement to compensate ASU no less than 30% of a first-year compensation package (including base and target bonus). ASU will then have a period of thirty (30) days to respond with acceptance/decline of such offer.
Each party will be excused from delays in performing, or from its failure to perform, hereunder to the extent that such delays or failures result from causes beyond such party’s reasonable control. Unavailability of personnel shall not be the basis for an excusable delay—unless prior consent is granted from either party. Client further acknowledges that such delays or failures shall be subject to change management procedures and may result in additional charges for the services.
Complete and timely communication, deliverables and project participation is required. If unexcused delays by the Client prevent ASU from making progress on the project for more than seven (7) consecutive days, ASU may discontinue working on the project, and Client will be billed for payment of all work completed to date, due upon receipt.
A waiver by any Party of any provision of this agreement in any instance shall not be deemed to waive it for the future. A Party’s failure to insist on strict compliance with any of the terms of this Agreement on one or more occasions is not a waiver of any rights or obligations under this Agreement.
ASU warrants that the services shall be performed in a professional manner consistent with the standard of care for professionals in the software development industry. However, Client acknowledges that no guarantee of any particular result has been made. Except as provided in this section, the services are provided “as is,” and ASU makes no warranty of any kind, whether express or implied, regarding the services and expressly disclaims the warranties of merchantability, fitness for a particular purpose and against infringement. ASU does not warrant that the service will meet client’s requirements, operate without interruption or be error free.
In no event shall ASU be liable for any direct, indirect, special, incidental or consequential damages whatsoever (including damages for loss of business profits, business interruption, loss of data or other pecuniary loss) whether based in contract or tort (including negligence) arising out of or related to the services to the other, even if the offending party has been advised of the possibility of such damages. In no event shall ASU liability exceed the fees paid for the services during the three (3) month period immediately prior to the incident.
Client agrees to defend, indemnify, and hold harmless ASU from and against any and all liabilities, claims, demands, damages, or costs (including attorney fees), made by or owed to third parties, other than subcontractors of ASU, alleging that Client’s use of the services other than as contemplated in this Agreement intentionally infringes or misappropriates the intellectual property rights of a third party or violates applicable law, provided that ASU (a) promptly gives Client written notice of any such claim, (b) gives Client sole control of the defense and settlement of any such claim, and (c) provides to Client all reasonable assistance.
If any party resorts to an action to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and expenses in addition to any other relief to which that party is entitled. The venue for any action brought relating to this Agreement shall be the Superior Court of California for the County of Sonoma located in Santa Rosa, California.
This Agreement is entered into, and shall be construed and interpreted in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of California.
This Agreement constitutes the entire understanding and agreement between the parties hereto. This Agreement supersedes any and all prior discussions, negotiations and agreements, if any, between the parties hereto with respect to the subject matter of this Agreement. This Agreement may be amended or terminated only if such amendment is set forth in writing and signed on behalf of Client and ASU.
Customer grants ASU a worldwide, royalty-free, non-exclusive, sub-licensable license to reproduce, distribute, publicly display and digitally perform its trademarks, trade names, service marks or other indicia of origin, to further the objectives of this Agreement and ASU’s general corporate promotional efforts.
The invalidity or illegality in whole or in part of any provision hereof shall not affect any other provision. Any such invalid or illegal provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
The provisions of the following sections: CONFIDENTIALITY, OWNERSHIP OF WORK PRODUCT, LIMITATION OF LIABILITY, IDEMNIFICATION and USE OF MARKS, shall survive the expiration or termination of this Agreement for any reason. This Agreement may be executed in counterparts.