Last Updated: March 13, 2024
This Master Service Agreement (the "Contract") is between Fwd Newsletters LLC, a Texas limited liability company (the "Agency"), and its clients (the "Client") who accept this Contract in a Statement of Work agreement.
Each party’s obligations and rights under each Statement of Work shall be governed by the terms and conditions of this Contract and the Statement of Work. In the event of any conflict between the terms of this Contract and the terms of any Statement of Work, the terms of the Statement of Work shall prevail.
1.1 Expenses. The Client will reimburse the Agency's expenses. Expenses must be preapproved by the Client.
1.2 Invoices. The Agency will invoice the Client monthly. The Client agrees to pay the amount owed within 15 days of receiving the invoice. Payment after that date will incur a late fee of 8.0% per month on the outstanding amount.
1.3 Support. The Agency will not provide support for any deliverable once the Client accepts it, unless otherwise agreed in writing.
1.4 Refunds. The Agency will not provide refunds or partial refunds unless a refund or partial refund is agreed to, in writing, by the Agency and the Client.
2.1 Agency Obligations. The Agency may also perform work for a competitor of the Client provided this work does not directly harm or otherwise cause damage to the Client. To avoid confusion, a competitor is any third party that develops, manufactures, promotes, sells, licenses, distributes, or provides products or services that are substantially similar to the Client’s products or services. A competitor is also a third party that plans to do any of those things. If the Agency uses employees or subcontractors, the Agency must make sure they follow the obligations in this paragraph, as well.
2.2 Client Obligations. The Client agrees not to attempt to reverse engineer the Agency's unique processes, not to develop a competitor to the Agency's services, and not to engage in any activity that directly or indirectly undermines the Agency's business interests.
In the event of a breach of this section, the Agency may take legal action, including seeking injunctive relief, and the Client waives the Arbitration clause in section 11.2. The Client acknowledges and agrees that such breaches may cause irreparable harm to the Agency, for which monetary damages may not be sufficient relief.
Until this Statement of Work ends, the Agency won’t: (a) encourage Client employees or service providers to stop working for the Client; (b) encourage Client customers or clients to stop doing business with the Client; or (c) hire anyone who worked for the Client over the 12-month period before the Contract ended. The one exception is if the Agency puts out a general ad and someone who happened to work for the Client responds. In that case, the Agency may hire that candidate. The Agency promises that it won’t do anything in this paragraph on behalf of itself or a third party.
4.1 Overview. This section contains important promises between the parties.
4.2 Authority To Sign. Each party promises to the other party that it has the authority to enter into this Contract and to perform all of its obligations under this Contract.
4.3 Agency Has Right To Give Client Work Product. The Agency promises that it owns the work product, that the Agency is able to give the work product to the Client, and that no other party will claim that it owns the work product. If the Agency uses employees or subcontractors, the Agency also promises that these employees and subcontractors have signed contracts with the Agency giving the Agency any rights that the employees or subcontractors have related to the Agency's background IP and work product.
4.4 Agency Will Comply With Laws. The Agency promises that the manner it does this job, its work product, and any background IP it uses comply with applicable U.S. and foreign laws and regulations.
4.5 Work Product Does Not Infringe. The Agency promises that its work product does not and will not infringe on someone else’s intellectual property rights, that the Agency has the right to let the Client use the background IP, and that this Contract does not and will not violate any contract that the Agency has entered into or will enter into with someone else.
4.6 Client Will Review Work. The Client promises to review the work product, to be reasonably available to the Agency if the Agency has questions regarding this project, and to provide timely feedback and decisions.
4.7 Client-Supplied Material Does Not Infringe. If the Client provides the Agency with material to incorporate into the work product, the Client promises that this material does not infringe on someone else’s intellectual property rights.
This Contract is ongoing, until ended by the Client or the Agency. Either party may end this Contract for any reason by sending an email or letter to the other party, informing the recipient that the sender is ending the Contract and that the Contract will end in 30 days. The Contract officially ends once that time has passed. The party that is ending the Contract must provide notice by taking the steps explained in Section 11.4. The Agency must immediately stop working as soon as it receives this notice, unless the notice says otherwise. The Client will pay the Agency for the work done up until when the Contract ends and will reimburse the Agency for any agreed-upon, non-cancellable expenses. The following sections don’t end even after the Contract ends: 2 (Competitive Engagements); 3 (Non-Solicitation); 4 (Representations); 7 (Ownership and Licenses); 8 (Confidential Information); 9 (Limitation of Liability); 10 (Indemnity); and 11 (General).
The Client is hiring the Agency as an independent contractor. The following statements accurately reflect their relationship:
- The Agency will use its own equipment, tools, and material to do the work.
- The Client will not control how the job is performed on a day-to-day basis. Rather, the Agency is responsible for determining when, where, and how it will carry out the work.
- The Client will not provide the Agency with any training.
- The Client and the Agency do not have a partnership or employer-employee relationship.- The Agency cannot enter into contracts, make promises, or act on behalf of the Client.
- The Agency is not entitled to the Client’s benefits (e.g., group insurance, retirement benefits, retirement plans, vacation days).
- The Agency is responsible for its own taxes.
- The Client will not withhold social security and Medicare taxes or make payments for disability insurance, unemployment insurance, or workers compensation for the Agency or any of the Agency's employees or subcontractors.
7.1 Client Owns All Work Product. As part of this job, the Agency is creating “work product” for the Client. To avoid confusion, work product is the finished product, as well as drafts, notes, materials, mockups, hardware, designs, inventions, patents, code, and anything else that the Agency works on—that is, conceives, creates, designs, develops, invents, works on, or reduces to practice—as part of this project, whether before the date of this Contract or after. The Agency hereby gives the Client this work product once the Client pays for it in full. This means the Agency is giving the Client all of its rights, titles, and interests in and to the work product (including intellectual property rights), and the Client will be the sole owner of it. The Client can use the work product however it wants or it can decide not to use the work product at all. The Client, for example, can modify, destroy, or sell it, as it sees fit.
7.2 Agency's Use Of Work Product. Once the Agency gives the work product to the Client, the Agency does not have any rights to it, except those that the Client explicitly gives the Agency here. The Client gives permission to use the work product as part of portfolios and websites, in galleries, and in other media, so long as it is to showcase the work and not for any other purpose. The Client does not give permission to sell or otherwise use the work product to make money or for any other commercial use. The Client is not allowed to take back this license, even after the Contract ends.
7.3 Agency's Help Securing Ownership. In the future, the Client may need the Agency's help to show that the Client owns the work product or to complete the transfer. The Agency agrees to help with that. For example, the Agency may have to sign a patent application. The Client will pay any required expenses for this. If the Client can’t find the Agency, the Agency agrees that the Client can act on the Agency's behalf to accomplish the same thing. The following language gives the Client that right: if the Client can’t find the Agency after spending reasonable effort trying to do so, the Agency hereby irrevocably designates and appoints the Client as the Agency's agent and attorney-in-fact, which appointment is coupled with an interest, to act for the Agency and on the Agency's behalf to execute, verify, and file the required documents and to take any other legal action to accomplish the purposes of paragraph 2.1 (Client Owns All Work Product).
7.4 Agency's IP That Is Not Work Product. During the course of this project, the Agency might use intellectual property that the Agency owns or has licensed from a third party, but that does not qualify as “work product.” This is called “background IP.” Possible examples of background IP are pre-existing code, type fonts, properly-licensed stock photos, and web application tools. The Agency is not giving the Client this background IP. But, as part of the Contract, the Agency is giving the Client a right to use and license (with the right to sublicense) the background IP to develop, market, sell, and support the Client’s products and services. The Client may use this background IP worldwide and free of charge, but it cannot transfer its rights to the background IP (except as allowed in Section 11.1 (Assignment)). The Client cannot sell or license the background IP separately from its products or services. The Agency cannot take back this grant, and this grant does not end when the Contract is over.
7.5 Agency's Right To Use Client IP. The Agency may need to use the Client’s intellectual property to provide services. For example, if the Client is hiring the Agency to build a website, the Agency may have to use the Client’s logo. The Client agrees to let the Agency use the Client’s intellectual property and other intellectual property that the Client controls to the extent reasonably necessary to do the Agency's job. In addition to intellectual property, the Client acknowledges that the Agency may require access to the Client's data, including but not limited to email addresses, phone numbers, purchase history, and consumer behavior, to effectively provide its services. The Client grants the Agency a perpetual license to access, use, and process this data for any purpose. The Agency shall take all reasonable measures to protect the confidentiality and security of the Client's data. The Agency agrees to accept all liability for any use of the Client's data that is not explicitly related to providing services to the Client outlined in this Contract or in the Statement of Work; the Agency agrees it will never use the Client's name, brand, or other associations in communications not directly related to providing services to the Client; and the Agency agrees not to use the Client's data in a manner that materially harms the Client's interests or violates applicable data protection laws and regulations.
8.1 Overview. This Contract imposes special restrictions on how the Client and the Agency must handle confidential information. These obligations are explained in this section.
8.2 The Client’s Confidential Information. While working for the Client, the Agency may come across, or be given, Client information that is confidential. This is information like customer lists, business strategies, research & development notes, statistics about a website, and other information that is private. The Agency promises to treat this information as if it is the Agency's own confidential information. The Agency may use this information to do its job under this Contract, but not for anything else. For example, if the Client lets the Agency use a customer list to send out a newsletter, the Agency cannot use those email addresses for any other purpose. The one exception to this is if the Client gives the Agency written permission to use the information for another purpose, the Agency may use the information for that purpose, as well. When this Contract ends, the Agency must give back or destroy all confidential information, and confirm that it has done so. The Agency promises that it will not share confidential information with a third party, unless the Client gives the Agency written permission first. The Agency must continue to follow these obligations, even after the Contract ends. The Agency's responsibilities only stop if the Agency can show any of the following: (i) that the information was already public when the Agency came across it; (ii) the information became public after the Agency came across it, but not because of anything the Agency did or didn’t do; (iii) the Agency already knew the information when the Agency came across it and the Agency didn’t have any obligation to keep it secret; (iv) a third party provided the Agency with the information without requiring that the Agency keep it a secret; or (v) the Agency created the information on its own, without using anything belonging to the Client.
8.3 Third-Party Confidential Information. It’s possible the Client and the Agency each have access to confidential information that belongs to third parties. The Client and the Agency each promise that it will not share with the other party confidential information that belongs to third parties, unless it is allowed to do so. If the Client or the Agency is allowed to share confidential information with the other party and does so, the sharing party promises to tell the other party in writing of any special restrictions regarding that information.
8.4 Agency’s Processes Confidentiality. In addition to the Client’s confidential information, the Client acknowledges and agrees that the Agency’s processes, methodologies, and techniques used in delivering services under this Contract (collectively referred to as "Agency Processes") are confidential and proprietary to the Agency. The Client agrees to keep the Agency Processes confidential and not to disclose, reveal, or make use of the Agency Processes without the Agency's prior written consent. This obligation extends beyond the termination of this Contract. Any breach of this confidentiality obligation regarding the Agency Processes constitutes a waiver of section 11.2 and may result in immediate termination of this Contract and may subject the Client to legal action by the Agency for damages and injunctive relief.
Neither party is liable for breach-of-contract damages that the breaching party could not reasonably have foreseen when it entered this Contract.
10.1 Overview. This section transfers certain risks between the parties if a third party sues or goes after the Client or the Contractor or both.
10.2 Client Indemnity. In this Contract, the Agency agrees to indemnify the Client (and its affiliates and their directors, officers, employees, and agents) from and against all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of: (i) the work the Agency has done under this Contract; (ii) a breach by the Agency of its obligations under this Contract; or (iii) a breach by the Agency of the promises it is making in Section 5 (Representations).
10.3 Agency Indemnity. In this Contract, the Client agrees to indemnify the Agency (and its affiliates and their directors, officers, employees, and agents) from and against liabilities, losses, damages, and expenses (including reasonable attorneys’ fees) related to a third-party claim or proceeding arising out of a breach by the Client of its obligations under this Contract.
11.1 Assignment. The Client shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the Agency, which shall not be unreasonably withheld, conditioned, or delayed. Any attempt to do so in contravention of this paragraph shall be void and of no force and effect. The Agency may assign its rights or delegate its obligations, in whole or in part, without the need of obtaining consent of the Client to an entity that acquires all or substantially all of the business or assets of the Agency to which this Agreement pertains, whether by merger, reorganizations, acquisition, sale, or otherwise.
11.2 Arbitration. As the exclusive means of initiating adversarial proceedings to resolve any dispute arising under this Contract, a party may demand that the dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules.
11.3 Modification; Waiver. To change anything in this Contract, the Client and the Agency must agree to that change in writing and sign a document showing their contract. Neither party can waive its rights under this Contract or release the other party from its obligations under this Contract, unless the waiving party acknowledges it is doing so in writing and signs a document that says so.
11.4 Notices.
(a) Over the course of this Contract, one party may need to send a notice to the other party. For the notice to be valid, it must be in writing and delivered in one of the following ways: personal delivery, email, or certified or registered mail (postage prepaid, return receipt requested). The notice must be delivered to the party’s address listed at the end of this Contract or to another address that the party has provided in writing as an appropriate address to receive notice.
(b) The timing of when a notice is received can be very important. To avoid confusion, a valid notice is considered received as follows: (i) if delivered personally, it is considered received immediately; (ii) if delivered by email, it is considered received upon acknowledgement of receipt; (iii) if delivered by registered or certified mail (postage prepaid, return receipt requested), it is considered received upon receipt as indicated by the date on the signed receipt. If a party refuses to accept notice or if notice cannot be delivered because of a change in address for which no notice was given, then it is considered received when the notice is rejected or unable to be delivered. If the notice is received after 5:00pm on a business day at the location specified in the address for that party, or on a day that is not a business day, then the notice is considered received at 9:00am on the next business day.
11.5 Severability. This section deals with what happens if a portion of the Contract is found to be unenforceable. If that’s the case, the unenforceable portion will be changed to the minimum extent necessary to make it enforceable, unless that change is not permitted by law, in which case the portion will be disregarded. If any portion of the Contract is changed or disregarded because it is unenforceable, the rest of the Contract is still enforceable.
11.6 Signatures. The Client and the Agency must agree to this Contract through an e-signed Statement of Work. These electronic signatures count as originals for all purposes.
11.7 Governing Law. The laws of the state of Texas govern the rights and obligations of the Client and the Agency under this Contract, without regard to conflict of law principles of that state.
11.8 Entire Contract. This Contract and its associated Statement(s) of Work represents the parties’ final and complete understanding the agreement and the subject matter discussed in this Contract. This Contract and associated Statement(s) of Work supersede all other contracts (both written and oral) between the parties.
THE PARTIES HERETO AGREE TO THE FOREGOING AS EVIDENCED BY THEIR SIGNATURES ON A RELATED STATEMENT OF WORK AGREEMENT.
