Master Services Agreement

Overview of Master Services Agreement

This agreement applies to any and all services rendered by Concinnity LLC (dba Concinnity Digital).

This MASTER SERVICES AGREEMENT the ("Agreement"), effective the Date of first payment, is entered into, by and between the “Engaging Party”, represented by the “Engaging Party Representative” and the “Performing Party”, represented by the “Performing Party Representative”. The purpose of this Agreement is to set out the rights, obligations, terms and conditions of current and proceeding engagements between the Performing Party and the Engaging Party

Entirety of Agreement

This Agreement, the exhibits hereto, including any related SOWs, and Retainer Agreements, constitute and contain the entire agreement and final understanding between the Parties concerning the Services and all other subject matters addressed herein or pertaining thereto.

This Agreement supersedes and replaces all prior negotiations and all prior or contemporaneous representations, promises or agreements, proposed or otherwise between the parties, whether written or oral, concerning the Services, any study and all other subject matters addressed herein or pertaining thereto.

The provisions herein, and any other provision outlined in attached agreements, which by its nature is intended to survive termination or expiration, shall survive termination or expiration of this Agreement indefinitely

Term of Agreement

The terms of this Master Services Agreement will be perpetual, unless specified in writing by a Concinnity LLC representative.
Minimum term of service
All recurring services are subject to a minimum 6 month agreement. After the 6th period of billing, services will assume a month to month rendering and are subject to a minimum 30 days written notice for cancellation.

Scope of Work

Setup
The scope of work of setup type offerings will be determined by Concinnity LLC. Concinnity LLC reserves the right to amend the scope of work depending on the needs of the project.
Services
The scope of work of service type offerings will be determined by Concinnity LLC, and is subject to change without notice.
Hosting
Websites that are hosted on Concinnity LLC managed servers are subject to the following policies:
  • Any website changes, updates, or amendments are required to be performed by Concinnity LLC. No 3rd party agency, vendor, or staff member is permitted to access or attempt to access the website, the hosting environement, or any digital property hosted on Concinnity LLC managed servers. A breach of this policy is subject to an immediate cessation of hosting service and a $235 migration fee. At the time of fee payment, a Concinnity LLC representative will email a zip file of your website to the client point of contact and the client payment subscription for hosting will be suspended.
  • This does not change the ownership rights of the website. The engaging party will own the website (but not its licenses for technology) at the time of final payment. This policy is in place for the intention of preserving the security and uptime performance of all managed hosted sites.
  • Admin level access will be restricted to Concinnity LLC only staff for any and all sites that are actively hosted on it's servers.
  • Migration of a website away from our managed hosting is subject to a minimum $235 migration fee.
  • Cancellation Policy

    30 Days written notice
    Any and all cancellation requests are subject to a 30 day written notice, which must be submitted via this link:
    Request to Cancel Service
    Offboarding meeting required
    To finalize the cancellation of rendered services, the Engaging party is required to attend an offboarding meeting at a date and time that is mutually agreeable to all parties involved.

    This offboarding meeting's purpose to is finalize the removal of access of the Engaging party's marketing systems, and hand over any remaining intellectual property or assets.

    Failure to attend this meeting will result in continued billings until the 30 day written notice is submitted, and the meeting is held.
    Cancellation of setup
    Any and all setup services rendered on a recurring basis are subject to a 30 day written cancellation notice and offboarding meeting. Requested cancellation of setup services may be subject to additional billings.
    Cancellation of services
    Any and all services rendered on a recurring basis are subject to a 30 day written cancellation notice and offboarding meeting.

    Limitation of Liability

    The Engaging Party and the Performing Party warrant that they shall use commercially reasonable efforts to carry out their duties in accordance with reasonable and professional practices, and shall comply with applicable requirements of all other applicable federal and state regulations and laws.

    EACH PARTY HEREBY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING WITHOUT LIMIT, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE WITH RESPECT TO THE PERFORMANCE OF SERVICES HEREUNDER.

    EXCEPT WITH RESPECT TO SECTION 9 (Indemnification) BELOW, IN NO EVENT SHALL THE PERFORMING PARTY BE LIABLE TO THE ENGAGING PARTY (OR THE ASSOCIATED INDEMNIFIED PARTIES AS DEFINED THEREIN) FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, REVENUE, OR BUSINESS, WHETHER BASED ON BREACH OF CONTRACT, TORT, STATUTE, EQUITY, PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. EXCEPT WITH RESPECT TO SECTION 9 (Indemnification) BELOW, THE PERFORMING PARTY’S TOTAL LIABILITY TO THE ENGAGING PARTY (OR THE ASSOCIATED INDEMNIFIED PARTIES) UNDER THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF THE TOTAL AMOUNT PAID BY THE ENGAGING PARTY TO THE PERFORMING PARTY DURING THE PREVIOUS 12 MONTHS UNDER THIS AGREEMENT AND $1,000.

    Payment Terms

    Payment methods
    The engaging party may pay Concinnity LLC via the following methods:
  • Credit Card (for services under $2000 monthly billings)
  • ACH autodraft (for services over $2000 monthly billings)
  • ACH invoice via Quickbooks or similar
  • Payment methods not accepted
    The engaging party is required not to pay via the following methods:
  • Mail in check
  • Money Order
  • Cash

    Payments submitted via these methods are subject to a 25% processing fee, or may be rejected, as determined by Concinnity LLC.
  • payment for setup services
    Payment for setup services with total billings under $20,000 will be billed 1/2 up front, and 1/2 prior to launch or finalizing the project.

    Payment for setup services with total estimated billings over $20,000 will be billed monthly via Invoice at a rate agreed upon by both parties prior to the start of the project.
    Payment for recurring services
    Payment for recurring services are required to be set as a monthly automated subscription.
    Late Fees
    Payments that are owed and overdue more than 10 days are subject to a 15% late fee.

    Payments that are owed and overdue more than 30 days are subject to a 35% late fee and are subject to a cancellation of service, as determined by Concinnity LLC.
    All Sales Are final
    Payment transactions that are completed are final and are not elligible for refunds under any circumstances.

    Confidentiality

    Confidential Information shall be treated as confidential during the term of this Agreement and for a period of 4 years thereafter.

    During such period, the Parties will not:
  • 1. (a) disclose the Confidential Information of the Disclosing Party to any third party, using at least the same degree of care as it uses to protect its own confidential information, but not less than reasonable care or
  • 2. (b) use such information for any purpose other than to perform its obligations under this Agreement (including the Research Plans).

    Confidential Information does not include information which
  • a. (i) has previously been made generally available to the public,
  • b. (ii) becomes publicly known, without fault on the part of the Receiving Party, subsequent to disclosure by the Disclosing Party of such information to the Receiving Party,
  • c. (iii) is received by the Receiving Party at any time from a source, other than the Disclosing Party, lawfully having possession of and the right to disclose such information,
  • d. (iv) otherwise becomes known by the Receiving Party prior to disclosure by the Disclosing Party to the receiving party of such information, or
  • e. (v) is independently developed 3 by the Receiving Party without use of such information.

    The Receiving Party will not disclose Confidential Information of the Disclosing Party except to the Receiving Party’s officers, directors, employees, agents, and consultants who are under obligation of confidentiality upon a “need to know” basis in connection with negotiations amongst the Parties or if required to be disclosed by law, government regulation, or court order, provided that the Receiving Party promptly notifies the Disclosing Party upon learning of any such legal requirement, and cooperates with the Disclosing Party in the exercise of its right to protect the confidentiality.

    Upon termination of this Agreement, each party will, upon request, return all copies of Confidential Information received from the other.
  • Ownership of Materials & Data

    Who can create an account?
    In the event that the Performing Party as part of its’ activities on behalf of the Engaging party generates, authors or contributes to any design, creative work, method of process (whether or not patentable or reduced to practice or comprising Confidential Information), any copyrightable work (whether or not comprising Confidential Information) or any other form of Confidential Information relating directly or indirectly to the business of the Engaging Party or its Subsidiaries as now or hereafter conducted (collectively, "Intellectual Property"), the Performing Party Master Services Agreement acknowledges that such Intellectual Property is the sole and exclusive property of the Engaging Party and its Subsidiaries and hereby assigns all right, title and interest in and to such Intellectual Property to the Engaging Party or its designated Subsidiary.

    Any copyrightable work prepared in whole or in part by the Performing Party during the Engagement Period will be deemed "a work made for hire" under Section 201(b) of the Copyright Act of 1976, as amended, and the Engaging Party or its designated Subsidiary will own all of the rights comprised in the copyright therein.

    The Performing Party will promptly and fully disclose all Intellectual Property and will cooperate with the Engaging party to protect their interests in and rights to such Intellectual Property (including providing reasonable assistance in securing patent protection and copyright registrations and executing all documents as reasonably requested by the Engaging party, whether such requests occur prior to or after termination of the Performing party’s contract).

    Performance Guarantee

    performance is not guaranteed
    The performing party does not extend any warranties, guarantees or similar performance of results for any services offered. From time to time, estimates of projections of performance may be presented and discussed. These projected metrics are not guarantees, and neither party should assume that failure to meet these goals or performance projections warrants a cancellation of services.

    Indemnification

    The Engaging Party shall, to the fullest extent permitted by law, defend, indemnify and hold harmless the Performing Party and its members, directors, officers, employees and agents (the “Concinnity LLC Indemnified Parties”) from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any negligent, gross negligent or intentional tortious act or omission of the Engaging Party, its employees or agents, in performing the Services and performing its obligations under this Agreement, except to the extent that such claims, liabilities, losses or expenses arise from or in connection with the negligence, gross negligence, or intentional tortious act or omission of the Concinnity LLC Indemnified Parties.

    Concinnity LLC shall, to the fullest extent permitted by law, defend, indemnify and hold harmless the Engaging Party and its respective directors, members, trustees, officers, employees, and agents (the "Engaging Party Indemnified Parties"), from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any negligent, gross negligent or intentional tortious act or omission of Concinnity LLC, its employees or agents, in performing its duties and performing its obligations under this Agreement, except to the extent that such claims, liabilities, losses or expenses arise from or in connection with the negligence, gross negligence, or intentional tortious act or omission of the Engaging Party IndemnifiedParties.

    Force Majeure

    Any delay or failure of a Party hereto to perform its obligations hereunder will be excused if and to the extent that it was caused by an event or occurrence beyond such Party’s reasonable control and without its fault or negligence (“Force Majeure”). Force Majeure includes, but is not limited to, acts of God, actions by any government authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, or court injunction or order.

    A Party claiming Force Majeure must provide the other Party with written notice of such delay (including the anticipated duration of the delay) within ten days of the occurrence of Force Majeure.

    If the delay lasts more than 30 days, or if the Party claiming Force Majeure does not provide adequate assurances to the other Party that the delay will cease within 30 days, such other Party may terminate this Agreement upon written notice to the Party claiming Force Majeure.

    Disputes & Breach of Agreement

    Requirement of written notice
    In the event one Party believes the other Party to be in breach of this Agreement (“Dispute”), the aggrieved Party shall notify the other Party in writing (“Notice”) of the alleged breach or violation, and the Parties shall attempt in good faith to resolve or clarify the Dispute (“Negotiation”).
    Mediation
    In the event the parties are unable to cooperatively resolve the Dispute, they shall attempt, in good faith, to mediate the matter in a mutually acceptable location (“Mediation”), engaging the services of a mediator familiar with subject matter at issue and acceptable to both Parties.

    Applicable mediation fees shall be borne equally by the Parties. The requirement of Mediation shall be deemed satisfied if the filing Party proposed a qualified mediator and offered to make itself reasonably available during the 60 days following Notice, but Mediation did not take place or conclude within such 60-day period.
    Mutually agreed waiver of mediation
    The requirement of Mediation and Negotiation may be waived upon mutual written consent of the Parties. Further, notwithstanding the foregoing, either Party may seek injunctive relief against a Party related to the acts or omissions of such Party that breach this Agreement and cause or are likely to cause irreparable harm to the other Party, without the requirement of Mediation or Negotiation.

    Poor Fit Clause

    Immediate Cancellation of service
    In the event of poor collaboration, hostile communication, recurring late payments, limitation of access, or lack of benefit, as determined by Concinnity LLC, Concinnity LLC reserves the right to execute an immediate cancellation of service for any and all services provided and provide immediate written notice of this cancellation.
    Billing
    If this clause is executed, any and all fees to be collected for that period (month) shall be due within 3 business days of written notice. The fees due will be provided with the cancellation notice via line-itemed invoice.
    Limitation of liability
    In the event that this clause is executed, this may result in an immediate suspension of vital business services, including but not limited to web hosting, phone tracking & routing, email hosting, domain registration, advertising spend, reporting, or performance monitoring.

    The engaging party agrees that Concinnity LLC will not be held liable for any damages relating to the immediate cessation of service.

    Concinnity LLC will alert the Engaging Party of the suspension of these services, included as part of the written notice.

    Concinnity LLC will also provide the Engaging party the opportunity for the continuation of these vital services, to be agreed upon and billing setup and paid for the next period within 3 business days of written notice.

    Assignment

    Neither Party hereto may assign, cede, or transfer any of its rights or obligations under this Agreement without the written consent of the other Party, whether by merger, acquisition, sale, operation of law, or otherwise.

    Severability

    The parties recognize the uncertainty of the law with respect to certain provisions of this Agreement and expressly stipulate that this Agreement shall be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of this Agreement are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions shall be deleted from this Agreement or modified so as to make them enforceable and the validity and enforceability of the remainder of such provisions and of this Agreement shall be unaffected.

    Insolvency

    Either party has the right to terminate this agreement where the other party becomes insolvent, is unable to pay its bills when due, makes an assignment for the benefit of creditors, goes out of business, or ceases production.

    Publication

    To the extent not otherwise prohibited by any other agreement between the Engaging Party and the Performing Party or an applicable SOW, the Performing Party is free to publish or present anonymous data or performance metrics under this Agreement without the prior approval of the Engaging Party

    Applicable Law

    This Agreement shall be governed by the laws of the state in which business is conducted.
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