MASTER SERVICES AGREEMENT
Last Revised: 1/1/2020
This Master Services Agreement the ("Agreement"), effective as of the date of execution (“Effective Date”), is entered into by and between the Client, and Vitris Wireless, LLC (“Vitris”) a Pennsylvania Limited Liability Corporation.
The term of this Agreement shall be from the Effective Date until terminated pursuant to the terms of this Agreement.
2. SCOPE OF WORK
Vitris agrees perform the following:
- Provide Client and any and all independent contractors retained by Client access to Vitris’ proprietary software for the purpose of building Client’s website.
- Solicit, on Client’s behalf, proposals from independent contractors to perform work.
- Provide invoices to Client for all work performed by any and all independent contractors on Client’s behalf, and collect payments made pursuant to those invoices.
Client agrees to perform the following:
- Client shall negotiate with independent contractors directly regarding the scope of work to be performed by said contractors using Vitris’ proprietary software. The price and scope of work to be performed by any and all independent contractors is a separate agreement between Client and the independent contractor(s) and Vitris disclaims any and all responsibility in negotiating the terms of any such agreements.
- Client shall promptly pay all invoices submitted by Vitris. To that end, Client agrees to enter into a recurring payment plan wherein Client gives Vitris permission to charge Client’s credit card for all services performed. Vitris will only charge Client for services performed where Client has given authorization to perform the requested work.
- Client shall request all changes to work through Vitris’ communication log. No changes shall be permitted unless those changes are requested through the communication log.
The Compensation for services provided pursuant to this Agreement shall be made in the form of a commission charged by Vitris to the independent contractor(s) retained by Client for the purpose of building Client’s website. Client and the independent contractor shall agree on a price prior to the commencement of any work and Client shall provide written authorization to the independent contractor(s) (with a copy provided to Vitris) for all work requested. No work shall be performed on Client’s behalf without written authorization from Client.
You may pay for Services by using any of the following “Payment Methods”: (i) valid credit card, (ii) electronic payment from your personal or business checking account, as appropriate (and as defined below); (iii) PayPal, or (iv) via credit balances, if applicable, each a “Payment Method”. Your Payment Method on file must be kept valid for the duration of this Agreement, and you agree that Vitris may take payment from the Payment Method associated with Client’s account. In the event that Vitris’ attempt to take payment from the Payment Method associated with Client’s account fails, Vitris will provide notice to Client that unless payment is received within fifteen (15) days of notice, this Agreement shall terminate and Client shall be in default of this Agreement.
Client agrees that all amounts paid to Vitris are non-refundable and that no refunds shall be issued pursuant to this Agreement. To the extent that Client disputes certain charges, Vitris may, in its discretion, issue credits to Client for additional work.
4. INDEPENDENT CONTRACTOR
The relationship between Vitris and Client and shall, be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Each Party shall, at all times during the term of this Agreement, perform the duties and responsibilities herein without any control by the other Party. Either Party may realize a profit or loss in connection with performing the services. Either Party may render similar services for the benefit of others. Neither Party is an agent of the other Party and is not authorized to make any representation, contract, or contract commitment on behalf of the other Party.
5. INTELLECTUAL PROPERTY
Client acknowledges that access to Vitris’ proprietary software is provided to Client as a temporary, non-exclusive, and revocable license, and that Vitris may, in its absolute discretion, revoke Client’s license at any time and for any reason, including, but not limited to, failure to pay any invoices due and owing to Vitris, unlawful conduct by Client, including affiliates, agents, independent contractors, or any other individuals or entities acting on Client’s behalf, or any other breach of this Agreement.
The Parties agree that any and all content created by Client for the purpose of posting on any and all website created pursuant to this Agreement shall remain the intellectual property of Client and that Client shall retain ownership of any and all applicable trademarks, copyright, patents or other intellectual property in the form of the content posted to any websites created pursuant to this Agreement.
Client acknowledges that in order for Vitris and any independent contractor(s) solicited by Vitris and retained by Client to build Client’s website(s), Client must allow Vitris and those independent contractor(s) access to Client’s intellectual property. Client therefore provides a perpetual license to Vitris to use Client’s intellectual property for the purpose building and maintaining Client’s website. Client hereby authorizes Vitris and any and all independent contractors solicited by Vitris to store, place, or otherwise use Client’s intellectual property on Vitris’ servers, databases, and algorithms for the purpose of building Client’s website.
The Parties agree that the website itself, apart from any and all content posted by Client, shall remain the intellectual property of Vitris, and that upon termination of this Agreement, Vitris shall retain ownership of any websites created on Client’s behalf, and that Client shall not be able to further edit, post to, or access such websites.
Confidential Information shall be treated as confidential during the term of this Agreement and for a period of seven (7) years thereafter. During such period, the Parties will not: (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 (b) use such information for any purpose other than to perform its obligations under this Agreement. Confidential Information does not include information which (i) has previously been made generally available to the public, (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, (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, (iv) otherwise becomes known by the Receiving Party prior to disclosure by the Disclosing Party to the receiving party of such information, or (v) is independently developed 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.
7. WARRANTIES AND LIABILITY
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, VITRIS 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 8 (Indemnification) BELOW, IN NO EVENT SHALL THE VITRIS BE LIABLE TO CLIENT 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 CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. EXCEPT WITH RESPECT TO SECTION 8 (Indemnification) BELOW, VITRIS’S TOTAL LIABILITY TO CLIENT 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 CLIENT TO VITRIS DURING THE PREVIOUS 12 MONTHS UNDER THIS AGREEMENT OR $500.
Client shall, to the fullest extent permitted by law, defend, indemnify and hold harmless Company and its members, directors, officers, employees and agents (the “Company 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 client, 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 gross negligence, or intentional tortious act or omission of the Vitris.
9. 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.
This Agreement may be terminated by either Party upon 30 days' prior written notice, or if the other Party materially breaches this Agreement (other than for non-payment by Client) and such breach is not cured within 30 days following receipt of written notice of termination. If Client has materially breached this Agreement through non-payment, Vitris may terminate this Agreement upon 10 days following receipt of written notice of termination. Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties accrued prior to the effective date of the termination. Upon termination of this Agreement, Client shall pay Vitris any unpaid Fees set forth in an associated SOW for Services provided through the date of termination.
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 or its counsel (“Notice”) of the alleged breach or violation, and the Parties shall attempt in good faith to resolve or clarify the Dispute (“Negotiation”). 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.
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.
In the event that the parties cannot resolve their dispute through mediation or otherwise, all claims, disputes, or other matters in question between the parties shall be decided by binding arbitration pursuant . The arbitration shall take place in Philadelphia, Pennsylvania before one (1) arbitrator. The proceedings and any judicial review of arbitration awards shall be governed by the Federal Arbitration Act. To the extent consistent with this Agreement, the Commercial Arbitration Rules and Procedures of the American Arbitration Association shall apply to all arbitration proceedings.
12. CHOICE OF LAW AND FORUM
Notwithstanding any terms or conditions to the contrary in any agreement between the parties, all actions arising out of this agreement, its formation, or the performance by either party thereunder shall be governed and construed under the laws of the Commonwealth of Pennsylvania.
No waiver of any term, provision or condition of this Agreement whether by conduct or otherwise in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition, or of any other term, provision or condition of this Agreement.
14. ENTIRE AGREEMENT
This Agreement contains all of the agreements and understandings relating to the work performed pursuant to this Agreement and the obligations of Vitris and Client in connection with such work. Vitris has not made, and Client is not relying upon, any warranties, or representations, promises or statements made by Vitris or any agent of Vitris, except as expressly set forth herein. This Agreement supersedes any and all prior agreements and understandings between Vitris and Client and alone expresses the agreement of the parties.
In the event any provision of this Agreement is found to be unenforceable, the remainder of this Agreement shall not be affected, and any provision found to be invalid shall be enforceable to the extent permitted by law. The parties agree that in the event two different interpretations may be given to any provision hereunder, one of which will render the provision unenforceable, and one of which will render the provision enforceable, the interpretation rendering the provision enforceable shall be adopted.
If you have any questions about this Agreement, please contact us by email or regular mail at the following address:
1510 Cecil B. Moore Avenue,
Philadelphia, PA 19121