Master Services Agreement

This Revelry Labs, LLC Master Services Agreement (this "Agreement") is made and entered into effective {{signed_date}} by and between {{company_name}}(the "Client"), having its place of business at: {{company_street}}, {{company_city}}, {{company_state}}, {{company_zip}} (the"Client"), and Revelry Labs, LLC having its place of business at: 4200 Canal Street, Suite E, New Orleans, LA, 70124 ("Consultant")(each a "Party" and together the "Parties").

WHEREAS, the Client desires to retain Consultant to perform consulting, design and development services upon the terms, covenants, and conditions contained herein; and

WHEREAS, Consultant desires to become a consultant to the Client and is willing to execute this Agreement to establish in writing the terms and conditions related thereto.

NOW, THEREFORE, in consideration of good and valuable consideration and of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

1. Consultant's Duties. In addition to any assumptions or obligations in a Statement of Work, that parties agree that:
2. Consultant shall provide its services to the Client as the Client may reasonably require. Specifically, and without limitation, Consultant agrees to engage in activities and advisory activities on the matters pertaining to software development, website programming, and/or design work, whether more particularly described in statements of work (each of which is a "Statement of Work" or a "SOW") executed pursuant to Section 2 of this Agreement, or outside the scope of a SOW in accordance with Section 3 of this Agreement.
3. Once an SOW is fully executed, Consultant shall make its best efforts to staff the team as quickly as possible. Client acknowledges that Consultant has staffing requirements for both ongoing and new work and that Consultant may need up to four (4) weeks from the date that a SOW is fully executed before the work therein is fully-staffed.
4. The consulting services rendered by Consultant hereunder shall be provided by Consultant as an independent contractor, and not as an employee, partner, or joint venturer.
5. Consultant shall be responsible for payment of the federal, state, and local taxes and the preparation of tax returns and reports related to the work more particularly described in any Statement of Work prepared in accord with Section 2 herein.
6. Statement of Work. Before any Services shall commence under this Agreement Consultant and Client will agree to the terms of a SOW that describes the deliverables to be provided by consultant under that SOW (the "Deliverables"), details the fees for such work, and provides invoicing terms, and is signed by both Parties (each a "SOW"). Upon full execution of the SOW, each SOW shall become part of this Agreement. If the provisions of any SOW conflict with this agreement, then the terms of the SOW control.
7. Services; Fees; Billing Disputes. Client shall pay all invoiced fees and approved expenses as provided in each applicable SOW. If Client disputes any amount invoiced, Client must give Consultant written notice describing the dispute in reasonable detail within 15 calendar days of the receipt of each invoice. If Client fails to raise a dispute within such time frame, Client hereby agrees that the failure to timely dispute an invoice shall waive Client’s right to initiate a dispute at a later date.
8. Client Obligations. In addition to any assumptions or obligations in a SOW, Client shall:
9. timely provide all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials to be provided by, or on behalf of, Client to be used by Consultant in connection with the preparation of, or incorporated into, the Deliverables that are necessary for Consultant’s performance of the Services;
10. ensure that Client employees and stakeholders are available and responsive to Consultant’s inquiries of Client over the course of the delivery of the Services; and,
11. provide any access necessary for Consultant to perform its services ("Client Obligations"). If Client repeatedly or unreasonably fails to perform the Client Obligations, Consultant may provide written notice specifying the failure and request that Client correct the failure. If Client does not correct the failure within ten days of its receipt of the notice, Consultant may, by written notice to Client, stop work under the SOW and invoice for services provided through the date of work stoppage. To resume services, Consultant may require an amendment to the SOW.
12. Termination. Either party may terminate this Agreement at any time upon not less than ten (10) business days' written notice. In the event of such termination, Consultant shall be paid for any portion of the Services performed prior to the termination date and any early termination fees due and owing in accordance with the applicable SOW, if any.
13. Ownership of Intellectual Property.
14. Except as otherwise expressly agreed in writing between the Parties, the Deliverables shall be work-made-for-hire. Consultant shall grant and assign to Client all intellectual property rights and interests arising out of the Deliverables with the execution of an inventions assignment (the "Inventions Assignment") document upon Client's request, only after Client has paid all amounts due and owing to Consultant, including any early termination fees owed to Consultant, and pursuant to all terms of this Agreement.
15. The Inventions Assignment shall include, but it is not limited to, all developed code, programs and/or programming, and any technology or resulting intellectual property in any work Consultant performs in the creation of Client's application(s), subject to the terms of this Agreement and any applicable SOW.
16. The assignment of intellectual property rights and interests arising out of the services in the Inventions Assignment shall not include Consultant's intellectual property (including its designs, methods, software, and trade secrets) that either preexist this Agreement or are developed by Consultant other than in providing services for Client under this Agreement (the "Tools"). The Tools shall include any improvements to, or modifications of, Tools that are not uniquely applicable to the scope of work defined in the applicable SOW.
17. Client acknowledges that the assignment of intellectual property in any Deliverables is subject to all the terms and conditions of any software or APIs (i.e., Google Maps, etc.) incorporated into Client's application(s) and further acknowledges that this agreement shall also be subject to all terms and conditions governing the use of such APIs.
18. Covenant. Consultant agrees that during the Term of this Agreement, it shall not directly divert or attempt to divert, or otherwise interfere with, disrupt or harm the business relationships of the Client
19. Severability. The Parties intend all provisions of this Agreement to be enforced to the fullest extent permitted by law. Accordingly, if a court of competent jurisdiction should determine that the scope of any provision is too broad to be enforced as written, the Parties intend that the court should reform the provision to such narrower scope as it determines to be enforceable. If, however, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future law, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision were never a part hereof, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision, or by its severance.
20. Assignment. The Client shall have the right to assign this Agreement to its successors or assigns, and all covenants and agreements herein shall inure to the benefit of, and be enforceable by or against, such successors or assigns. The terms "successors" and "assigns" shall include any natural person or any entity that buys all or substantially all of the Client's assets or all of its stock or with which the Client merges or consolidates. The rights and duties of, and benefits to, Consultant hereunder are personal to him, and no such right, duty, or benefit may be assigned by him without the prior written consent of the Client.
21. Confidentiality. During the term of this Agreement and for 2 years afterward, Consultant will use reasonable care to prevent the unauthorized use or dissemination of Client’s confidential information. Reasonable care means at least the same degree of care Consultant uses to protect its own confidential information from unauthorized disclosure. All information of Client’s not specifically deemed as “public” by Client shall be considered confidential by Consultant. Confidential information does not include information that is, or becomes, public knowledge through no fault of Consultant. Subject to confidentiality obligations to Client, after delivery and Client’s acceptance (or as otherwise expressly permitted by Client in writing) of all Deliverables and Client’s public launching of the creative materials included in the Deliverables, Client consents to Consultant posting selected pieces of creative materials on Consultant’s website or within marketing materials for promotional and case study purposes. Consultant will, upon Client’s request, remove from Consultant’s website any of those materials that identify Client, whether by name, logo, or otherwise. Client also consents to the inclusion of Client’s name to Consultant’s client list. Consultant will not issue any press releases or engage in any other publicity with respect to the work completed pursuant to this Agreement without Client’s prior written consent.
22. Non-Solicitation. Client and Consultant agree that they will have direct contact with employees of each other’s firm, Client and Consultant agree to not solicit one other’s employees to work for each of them directly during the Term, or for a period of 12 months following the end of the Term. In the event Client or Consultant hires an employee of the other Party, a transfer fee of the lesser of $40,000 or 30% of the employee’s annual salary paid to that person by Party shall be due to the employee’s original employer (i.e., the other party). The transfer fee is due if the employee is hired or engaged under any title or position (whether as employee, consultant, or independent contractor) by the other Party or any of its divisions, subsidiaries, or affiliates. The Parties may mutually agree to terms that void the foregoing transfer fee.
23. Representations and Warranties.
24. Each party warrants that:
25. it is authorized to enter into and perform this agreement;
26. entering into and performing this agreement will not conflict with any other agreement to which the party is bound; and
27. it will perform under this agreement in accordance with applicable law.
28. Consultant warrants that all services performed under this Agreement shall be performed consistent with generally prevailing professional or industry standards. Client must report any deficiencies in Consultant’s services to Consultant in writing within 30 days of performance to receive warranty remedies.
29. Subject to the terms of this Agreement, Consultant warrants that it owns and possesses all rights and interests in the Deliverables and any software necessary to enter into this Agreement, and/or has the license rights, legal permission and authority with respect to any software used by Consultant to deliver any of the services or work called for under this Agreement, and that Consultant has the authority to convey and grant the licenses granted to Client by Consultant under this Agreement, free and clear of any liens and encumbrances, and that the use of any deliverable, software and any and all of the other products, and work produced by Consultant for Client as described in this Agreement will not infringe upon or violate any patent, copyright, trade secret, trademark, service mark, or other proprietary or intellectual property rights of any third party (“Intellectual Property Rights”). Client’s exclusive remedy for any breach of the above warranty shall be the re-performance of Consultant’s services. If Consultant is unable to re-perform the services, Client shall be entitled to recover the fees paid to Consultant for the deficient services.
30. Client warrants that, to its knowledge, the Client Materials will not, if used by Consultant as contemplated by the SOW, infringe any third-party intellectual property rights.
31. Client acknowledges and agrees that Consultant is not responsible for the contents of any third-party data or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services and that Consultant shall not be held responsible for any damages suffered by Client caused by such service(s).
32. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 12, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 12 OF THIS AGREEMENT.
33. Limitation on Contractor's Liability to Client.
34. No Consequential or Indirect Damages. IN NO EVENT SHALL CONSULTANT OR ANY OF ITS REPRESENTATIVES BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH HEREOF, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
35. Maximum liability. IN NO EVENT SHALL CONSULTANT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED 100% OF THE AMOUNTS PAID TO CONSULTANT PURSUANT TO THE SOW GIVING RISE TO THE CLAIM.
36. If Remedy Fails of Essential Purpose. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 13 SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
37. Indemnification.
38. Client shall indemnify, hold harmless, and defend Consultant and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys' fees, that are incurred by Consultant in a judgment, administrative proceeding, or any alternative dispute resolution proceeding (collectively, "Losses"), arising out of any third-party claim, arising out of or in connection with Consultant’s performance under this agreement.
39. Notwithstanding anything to the contrary in this Agreement, Client is not obligated to indemnify, hold harmless, or defend Consultant against any claim (whether direct or indirect) if such claim or corresponding losses arise out of or result from Consultant's gross negligence or more culpable act or omission (including recklessness or willful misconduct).
40. Miscellaneous Provisions.
41. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, personal representatives, heirs, successors, and permitted assigns.
42. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, personal representatives, heirs, successors, and permitted assigns.
43. This Agreement may not be amended or modified in any respect except by a written instrument signed by all parties hereto.
44. The failure by either party to insist upon or enforce any of its or his rights under this Agreement shall not constitute a waiver thereof by such party or a waiver of any subsequent breach of the same or a different provision hereof. No waiver of any provision of this Agreement shall be enforceable unless it is in writing and signed by the party against whom or which it is sought to be enforced. No waiver by any party of any breach or any provision of this Agreement shall operate or be construed as a waiver of any subsequent breach.
45. This Agreement has been fully negotiated by both parties. In the event of any controversy, dispute, or contest over the meaning, interpretation, validity or enforceability of this Agreement, or any of its terms or provisions, there shall be no inference, presumption, or conclusion against either party.
46. The provisions of this Agreement are for the sole benefit of the Parties and their successors and permitted assigns, and they will not be construed as conferring any rights to any third party (including any third party beneficiary rights) and no such third party shall have any right to enforce any provision of this Agreement, even if indirectly benefited by it.
47. This Agreement and the rights and obligations of the parties hereto shall be construed by and enforced in accordance with the laws of the State of Louisiana. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in a court sitting in Orleans Parish, State of Louisiana, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in a state or federal court sitting in Orleans Parish, State of Louisiana. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
48. Any notices, consents, demands, requests, approvals, and other communications to be given under this Agreement by any party to the other shall be deemed to have been duly given if given in writing and personally delivered or sent by mail, registered or certified, postage prepaid with return receipt requested, at the address specified beside each party's signature at the end of this Agreement. Notices delivered personally or by e-mail, telegram, telex, or telecopy shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of 10:00 a.m. on the third business day after mailing. Any party may change its or his address for notice hereunder by giving notice of such change in the manner provided in this paragraph.
49. This Agreement, together with any SOWs executed from time-to-time which are incorporated herein by reference, constitutes the entire agreement between the Parties and supersedes any and all other agreements, either oral or written, between the Parties hereto with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with respect thereto.
50. The captions and Section headings used herein are for convenience only and are not a part of this Agreement and shall not be used in construing this Agreement.
51. The use of "herein," "hereof," and similar terms shall refer to this Agreement as a whole and not to any specific provision of this Agreement, unless the context clearly requires otherwise.
52. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and such counterparts together shall constitute one and the same document.