Fastspot Master Services Agreement

Master Services Agreement

Client engages Fastspot to perform professional interactive design services, and to provide related goods, which may include graphic design; interactive and Internet-based design and programming; Website hosting; consulting; strategy development; content audit; content strategy; search engine optimization; organizational consulting; copy writing; video services; photography; identity and brand development; customized content management solutions; responsive design and development; application development; email design and deployment; and ongoing support and services.
Each project or service for which Client wishes to engage Fastspot will be set forth in a separate Statement of Work, to be provided by Fastspot, which will identify the deliverables and/or services to be provided and the associated fees, which may be a fixed flat rate or an estimated fee based on the expected number of hours and applicable hourly rates (the “Fee”). Proposed Statements of Work automatically expire if not signed and returned by Client within thirty (30) days following the date of proposal. Whether or not specifically stated therein, each Statement of Work is subject to and incorporates fully the terms and conditions of this Agreement unless otherwise expressly agreed to in a writing signed and dated by Client and Fastspot, which writing expressly refers to this Agreement. Design projects, services, deliverables and proposals set forth in or produced pursuant to a Statement of Work, or otherwise performed, proposed, created or provided by Fastspot for use by Client, are collectively referred to herein as “Works.”

Fee

Unless otherwise expressly agreed to in a writing signed by Fastspot and Client, the Fee is due thirty (30) days from receipt of the invoice based on designated milestones indicated within the Statement of Work contract, with a “reservation payment” due prior to work beginning on the project. Fastspot is not obligated to commence work until Client has paid the initial “reservation payment” of the Fee.
Any Client-requested revisions, change orders or work outside the scope of a Statement of Work may result in additional charges, which will be assessed at Fastspot’s then-standard hourly rates, payment for which shall be due within thirty (30) days after the date of invoice.

Ownership and Rights in Works and Client Materials

If the client does not timely remit full payment of the fee, costs and all other sums due pursuant to the Statement of Work, the deliverables in their entirety, including without limitation all intellectual property and ownership rights therein, shall pass to the client to the extent the deliverables are completed and paid for.
Fastspot retains the right, is entitled and has a license to use copies of any and all deliverables for marketing, business development and industry competition purposes, and otherwise to demonstrate the nature and scope of Fastspot’s services and clientele.
During the course of engagement on this project and after its completion, Fastspot retains the right and is entitled to use images from and/or the name of the client on social networking channels in support of Fastspot’s marketing and business development.
The client shall retain ownership of and rights to all materials supplied by the client to Fastspot in connection with this Statement of Work. The client represents and warrants that client materials shall not infringe any copyright, trademark, trade secret or other third party proprietary, privacy or contractual right. The Client grants Fastspot a non-exclusive right and license to use and modify Client Materials as Fastspot deems necessary in order to perform its obligations under this Agreement or any applicable Statement of Work.

Works

Works shall mean all reports, analyses, recommendations, documents, computer programs, inventions or other material, in tangible or electronic form, that are authored, created, conceived, developed or reduced to practice by Fastspot, either solely or jointly with others, or by others on Fastspot’s behalf, in performance of Services. Fastspot agrees that all Works, and all results and proceeds thereof, shall be deemed to be a work made for hire as that term is defined under United States copyright law, and shall become the sole property of the Client, including ownership of all copyrights, patent rights, mask work rights and other proprietary rights in Works. Fastspot agrees to execute any papers and perform any acts necessary to secure, perfect or protect the Client’s rights in Works, and agrees not to reproduce or disclose to any third party any Works without the express written consent of the Client. To the extent that Fastspot has property rights that are incorporated in or necessary to the use of the Works, or Fastspot purchases intellectual property from photographers and illustrators for inclusion in Works (“Incorporated IP”), Fastspot agrees to sign over such rights and shall arrange to transfer to the Client a similar license from any such third parties upon completion of the project. The Client will assume responsibility for adhering to the terms of such license. Fastspot agrees to (i) use reasonable efforts to obtain Incorporated IP from third parties on terms that will allow the Client to reproduce the Works (including such images) for its own non-commercial use, including on the Client’s web site; (ii) deliver to the Client a copy of any third-party licenses for Incorporated IP; and (iii) upon delivery of the final Works, deliver to the Client a listing of all Incorporated IP contained in the final Works as to which reproduction by the Client for its own non-commercial use is restricted.

Client Participation

Fastspot’s ability to perform a Statement of Work in a timely manner will require Client feedback, authorization and/or materials (“Client Participation”). Specifically, Client shall have the following responsibilities:

Client shall designate a single and consistent contact person to be reasonably available to Fastspot by telephone or e-mail for all necessary feedback and clarifications, and who shall be an authorized decision-maker on behalf of Client. Fastspot is entitled to rely upon the contact’s approval, rejection, requests or any other direction given regarding the Statement of Work. It will be assumed that if this contact person “approves” a deliverable or a decision, that is has been given necessary stakeholder approval on the Client side.
Client shall provide reasonably prompt and timely review and approval of Works presented by Fastspot.
Any content which the Client provides for integration into the Website (migration, production, etc. ) must be approved, fully proofed and final.
Client shall provide logo and all other brand-related materials in .eps, .psd or vector format, as needed.
Client shall be responsible for scheduling necessary participants for meetings, focus groups and presentations, based on Fastspot’s recommendations and requests.
Client shall provide notice of availability for in-person meetings.
Client shall provide all hosting and software information as requested.
Client shall secure all rights and permissions for use of Client Materials provided to Fastspot, and Client represents and warrants that Client Materials shall not infringe any copyright, trademark, trade secret or other third party proprietary, privacy or contractual right.
Client understands and agrees that failure to provide necessary and prompt Client Participation may impair Fastspot’s ability to perform or complete a Statement of Work, and may result in delays, additional fees, costs, and/or budget overages.

Out-of-Pocket Expenses and Third Party Charges

All out-of-pocket expenses and third party charges not included in the Fee shall be billed separately (“Expenses”). Any and all expenses must be submitted to client for written approval prior to being incurred. We don’t anticipate any additional project fees, although they typically arise from additional work requests (falling outside the scope of the SOW), requests for photography, stock art purchases, web font purchases, licenses, etc. During the course of the project should any requests be made, or recommendations be issued, which may result in additional fees, an estimate will be presented to the client for approval prior to any purchases or invoices being issued.

Travel Costs

All costs related with project-related transportation are to be invoiced separately to the client based on expenses. Fastspot will invoice and expect reimbursement for costs related to airfare, gas, tolls, parking, hotels, food, beverages, or rental cars. All costs will be discussed with the client prior to being incurred, for verbal or email approval. Fastspot will issue good judgement regarding costs for travel related items and Client can dispute or contest any travel related costs if they feel the costs were unjustly high or unwarranted.

Pause Clause

If Fastspot determines, in its reasonable discretion, that lack of Client Participation requires suspension of the project, Client will be invoiced for all current work performed to the date of the suspension being issued. A Pause Clause is typically issued if the project has been delayed for longer than 30 days past the project schedule. Client acknowledges that it must provide a new reservation payment (determined based on the amount of the project still remaining outstanding) and will be issued a new project schedule and start date based on Fastspot’s availability, with no guarantees for meeting previously agreed upon deadlines and/or schedules. Extended suspensions (longer than 120 days) will result in Fastspot issuing a termination of the project.

Termination; Termination Rights

In the event of non-payment by Client of the Fee, or any fees or sums due under a Statement of Work, Fastspot is entitled to terminate this Agreement and/or the Statement of Work and to stop all work should Client fail to cure the non-payment within ten (10) business days after written notice by Fastspot. Absent such cure, Fastspot may terminate the Statement of Work and/or stop all work without further notice.
If Fastspot determines, in its reasonable discretion, that lack of Client Participation requires termination of the Agreement or a Statement of Work, and Client fails to provide all reasonable Client Participation requested within ten (10) business days after written notice by Fastspot, Fastspot may terminate this Agreement and/or the Statement of Work without further notice.
Client may terminate this Agreement, in whole or in part, by giving Fastspot ten (10) calendar days’ advance written notice of termination and specifying the extent to which the Agreement is terminated and the date upon which the termination becomes effective.
Either party may terminate this Agreement with advance written notice of termination to the other party if any material representation or obligation referred to in this Agreement has been breached, provided the injured party has given the other party written notice of such material breach and there has been a failure to cure such material breach within (10) business days after receipt of such notice.
On termination of this Agreement, Fastspot will return all Client papers, electronic data and other property in Fastspot’s possession.
Client’s termination of Fastspot’s services will not affect Client’s responsibility for payment of all services rendered and approved expenses incurred up to and including date of termination.

Limitation of Liability/Insurance and Indemnification

Fastspot will use reasonable, professional, industry-standard efforts in the preparation of the deliverables. Client represents and warrants to Fastspot that it has obtained all necessary authorizations for Fastspot to use third party-owned materials, art work, or any other property or rights that Client supplies to Fastspot for use in the performance of its services hereunder or under any Statement of Work.
Client shall indemnify Fastspot from and against any claims arising from breach of the representation and warranty contained herein.
Fastspot shall defend, indemnify and hold Client harmless from any and all damages, fees, penalties, deficiencies, losses and expenses (including court costs, and reasonable attorneys’ fees) (“Losses”) suffered, incurred or sustained by Client, resulting from, arising out of or relating to, any claim, suit or proceeding instituted by a third party for the unauthorized use of name or likeness of any person; libel; slander; defamation; disparagement; piracy; plagiarism; infringement of copyright, title, slogan or other property rights, however used or created in connection with the services or materials prepared pursuant to this Agreement. This indemnity, however, shall not apply where: (i) such Losses arise from the use of materials, provided or approved for use, by Client; (ii) such Losses arise from the use by Client of Fastspot-supplied materials in a manner inconsistent with agreements with third parties, (iii) Fastspot has directed Client to take or to refrain from taking certain actions relating to the property from which the claim arises, or (iv) the Loss is a result of a claim for patent infringement. If and to the extent Fastspot’s obligation to indemnify Client arises from a breach of a third party’s warranties or representations, Fastspot’s liability to Client shall be limited to the amount recoverable from such third party.
Client will review all materials prepared by Fastspot to confirm that any representations with respect to Client’s products, services or conduct are true and, if appropriate, supportable by competent and reliable tests or other objective data, as well as to confirm the accuracy of the descriptions and depictions of Client’s products or services.
Fastspot disclaims any warranty of merchantability or fitness for a particular purpose. Total liability of Fastspot to Client for any claim arising hereunder or under any Statement of Work associated hereunder, whether based in contract, equity or tort, shall be strictly limited to the Fees paid to date of the claim, which Fees are paid for services provided by Fastspot under the Statement of Work for which the claim arose. Fastspot’s obligation shall exclude any portion of the Fee paid to Fastspot that is passed-through by Fastspot to another vendor with the knowledge of Client.
Fastspot shall maintain in full force and effect, at no cost to the Client, general liability insurance with limits of not less than one million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00) in the aggregate per year. Fastspot will provide the Client with a Certificate of Insurance (COI) that provides evidence of this insurance if requested.
Fastspot shall maintain in full force and eﬀect, at no cost to the Client, Errors and Omissions liability coverage insurance with limits of not less than one million dollars ($1,000,000.00). Fastspot will provide the Client with a Certificate of Insurance (COI) that provides evidence of this insurance if requested.
Fastspot shall maintain in full force and effect, at no cost to the Client, workers’ compensation and unemployment insurance to insure all individuals hired as an employee of Fastspot and who provide services under the terms of the Statement of Work from claims arising out of the activities to be performed under the Statement of Work with limits required by law. Fastspot will provide the Client with a Certificate of Insurance (COI) that provides evidence of this insurance if requested.
The Client shall maintain in full force and effect, at no cost to Fastspot, general liability insurance covering liability arising out of the activities to be performed under the Statement of Work, with limits of not less than one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) in the aggregate per year. The Client will provide Fastspot a COI that provides evidence of this insurance if requested.
The Client shall maintain in full force and effect, at no cost to Fastspot, workers’ compensation and unemployment insurance covering claims arising out of the activities to be performed under the Statement of Work, with limits required by law. The Client will provide Fastspot a COI that provides evidence of this insurance if requested.

Confidentiality and Restrictive Covenant

The Client and Fastspot acknowledge that each party owns or possesses certain business information, trade secrets, methods, processes and/or know-how that it considers confidential and proprietary, including but not limited to technical data and specifications, financial information, marketing, advertising and promotional strategies, creative ideas, product research and laboratory results and/or samples, client, vendor and contractor lists and identities, prospective client, referral sources, employee information, marketing and business plans, information included in client files and/or pertaining to clients, the terms and conditions of client, contractor and vendor agreements, and passwords and codes needed to access files, accounts and records (hereinafter collectively “Confidential Information”), and that each party may disclose certain Confidential Information during the course of performance of this Statement of Work. Client and Fastspot agree that, during and all times after termination of the Agreement for any reason, the parties shall hold in confidence any Confidential Information received, before or after execution of this Agreement, and will use such information solely for the benefit of the disclosing party, or in accordance with any Statement of Work under which the Confidential Information was permitted, and will protect the confidentiality of such Confidential Information with the same degree of care that the party exercises with respect to its own information of like import, but in no event less than reasonable care. The parties shall not use, disclose, duplicate or distribute the Confidential Information to anyone other than as expressly permitted by this Agreement or as may be required by law or court order, without the other party’s prior written consent (and upon receipt of any legal process seeking such Confidential Information will promptly notify the disclosing party so that the disclosing party can contest disclosure). The parties will inform their respective employees having access to Confidential Information of the duties and obligations set forth herein.
For the duration of the Agreement, including all Statements of Work, and for a period of twelve (12) months following its termination for any reason, the parties, their affiliates, employees, officers, directors, agents, successors and assigns, consent and agree that they shall not hire or solicit for employment any employee of the other who engaged in any business-related activity in connection with this Agreement, a Statement of Work or the Works.
The parties acknowledge that breach of the provisions of this section will cause immediate and irreparable harm to the non-breaching party, which harm would be inadequately compensated by money damages. Accordingly, each party agrees that, in additional to any other legal remedies that may be available, temporary, preliminary and permanent injunctive relief against the threatened breach or breach shall be available without the necessity of proving actual damages and without need to post a bond.

In the Event of a Dispute

This Agreement and all Statements of Work shall be governed by and construed in accordance with the laws of Maryland. The parties consent and waive all contest to the jurisdiction of the state and federal courts located in Maryland in the event of a dispute arising from or relating to this Agreement or any Statement of Work. Any litigation arising from or relating to this Agreement or any Statement of Work shall be brought exclusively in a state or federal court in Maryland. In the event of litigation, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, expert witness fees and court costs.

Survival of Rights and Obligations

All rights, obligations and remedies which a party may accrue hereunder prior to termination shall survive termination. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns.

Severability

If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, this Agreement, including all remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

Waiver, Amendment and Assignment

Failure to insist upon strict performance of any term of this Statement of Work shall not act as a waiver of any party’s rights or entitlements hereunder. Neither this Agreement nor any Statement of Work may be amended or modified except by a writing signed and dated by both parties. Neither this Agreement, including any Statement of Work, nor any of the rights, interests, duties or obligations hereunder, may be assigned or delegated by either party absent prior written consent of the other party.

Force Majeure

Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance due to any cause beyond its reasonable control or failure in performance due to any cause beyond its reasonable control.

Complete Agreement

This Agreement and any Statement of Work issued hereunder shall form the entire agreement between the parties relating to the subject matter of this Agreement and the applicable Statement of Work. This Agreement and any Statements of Work issued hereunder can only be amended in writing, signed by both parties.

Acceptance

This Services Agreement (this “Agreement”) is entered by and between Fastspot, LLC (“Fastspot”), with its principal place of business at 2890 Falls Road, Baltimore, Suite 300, Maryland 21211, and Client through the Client’s acceptance of the provided Statement of Work, Change Order, or other contract detailing the work to be performed. This Agreement and the Terms listed above sets forth the terms and conditions regarding goods and services to be provided by Fastspot to Client and Client’s payment for same.