Master Services Agreement

TORQUE MEDIA - SERVICES AGREEMENT

RECITALS

1. Torque Media is in the business of creating custom website designs, providing web hosting, internet marketing, ongoing maintenance, and related services. Client wishes to utilize the services of Torque Media for this purpose as well as for other related services as set forth below.

TERMS OF THE SERVICE AGREEMENT
In consideration of the foregoing and the mutual promises contained herein, Torque Media and Client agree as follows:

  1. Engagement of and Payment to Torque Media. Client hereby agrees to engage and pay Torque Media for the services to be provided as set forth in Exhibit A (“Services”) which is attached hereto and is incorporated herein by this reference. All payment shall be due and payable within 15 days of the date of Torque Media’s invoice. Past due payments shall bear interest at the rate of 3% per month from the due date.
  2. Property Rights. Upon termination of the agreement, ownership of the completed assembled website including website design, graphics, text, and the html source code, shall be transferred to Client. Rights to stock photographs, other source codes and computer programs are specifically not transferred to Client, and remain the property of their respective owners.
  3. Warranties and Representations. Client acknowledges and agrees that Torque Media has no control of changing external economic and social factors that can affect Client’s business, and that any of the services and products that Torque Media provides cannot and will not guarantee that Client’s sales, revenue, income, or business activity will increase. Client further acknowledges and agrees that Torque Media has made no representations or guarantees that any Services provided by Torque Media will improve Client’s ranking or placement on any internet search engine.
  4. Start and Completion of Services. Client acknowledges that Torque Media’s start and completion of the Services are dependent upon Client providing materials including but not limited to text, images, videos, and any special input and instructions regarding said content, (collectively, “Content”), including timely approvals from Client. Client agrees to provide Torque Media with all Content needed to complete the Services within thirty (30) days of any request from Torque Media. Any delay by Client will affect the completion of the Services. In the event that Client does not timely provide Torque Media with the requested Content, Client agrees that Torque Media may use filler content of Torque Media’s choosing to complete the Services. In the event of any such delay by Client, Client agrees to be responsible for Torque Media’s fees and any additional costs incurred for any additional work required to be done by Torque Media. All additional work necessitated by Client’s delay shall be billed at the rate of $150 per hour. Client acknowledges that Torque Media is not responsible and agrees to hold Torque Media harmless for any delays or damages resulting from Client’s failure to make such submissions in a timely manner.
  5. Meetings and Approvals. Client agrees to meet with Torque Media as required by Torque Media. Milestone approvals and sign-offs must be responded to within dates specified by Torque Media. A non-response by Client to a requested approval or sign-off shall constitute that milestone or sign-off is approved by Client.
  6. Changes/Additions to Agreed upon Services. In the event Client wishes to make changes to any work by Torque Media that has already been approved and accepted by Client including, but not limited to, design, graphics, text, layout of a site, SEO or campaign strategy, or, if in the opinion of Torque Media, any item of work requested by Client is not within the scope of Exhibit A, Clients agrees to pay Torque Media at the hourly rate of $150 per hour in addition to any costs incurred by Torque Media.
  7. Electronic Commerce. Client understands and acknowledges that from time to time, that State, Federal, and local laws and regulations may change, to include taxes, assessments, tariffs and levies which pertain to internet electronic commerce. Client agrees that Client is solely responsible for compliance with any and all laws and regulations and is responsible for all taxes, assessments, tariffs, and levies.
  8. Assignment of Project. Torque Media reserves the right to assign subcontractors to this project. At the sole discretion of Torque Media, work produced by subcontractors may be protected under signed confidentiality agreements and shall remain the property of Torque Media.
  9. Conditions Affecting Performance. Certain conditions beyond the control of Torque Media may affect Torque Media’s ability to perform obligations provided for under this Agreement. These conditions may include, but are not limited to, labor shortages, internet outages, change in supported technologies, Acts of God, or circumstances and causes beyond the control of Torque Media. Torque Media shall not be liable for and Client agrees to hold Torque Media harmless for any delays, cancellations, or terminations that result in damages of any kind to Client as the result of any such conditions or circumstances.
  10. Use of Clients Materials. Should Torque Media, upon Client’s written request, verbal instruction or delivery of materials, utilize Client’s materials which may include, but are not limited to, photographs, text, software, code, copyrighted material and/or materials that may be owned by third parties (“Client’s Materials”), Client acknowledges and agrees that neither Torque Media nor its employees, agents or anyone acting on its behalf have made any representation to Client regarding Client’s entitlement to use Client’s Materials. Client acknowledges and agrees that Client has relied on its own investigation to establish whether Client is entitled to use Client’s Materials. Client agrees to defend, indemnify and hold Torque Media, its employees, agents or anyone acting on its behalf harmless from any and all claims of any kind including, but not limited to, all lawsuits for damages, royalties, penalties, interest, legal fees, expert fees and court costs of any kind (“Claims”) arising out of, related to, or alleged to arise out of or relate to any use of Client’s Materials unless such Claims are due to Torque Media’s gross negligence or intentional misconduct.
  11. No Hire of Employees/Subcontractors. Client agrees that Client shall not solicit in an attempt to hire, hire or contract directly with any employee employed by Torque Media nor any independent contractor who provides service for Torque Media for the same or similar services provided by Torque Media.
  12. Final Product Testing. Client agrees that Client shall test the functionality of any website created by Torque Media to ensure that it is working pursuant to the Client’s needs before it is used for Client’s business or other related purposes. If Client discovers that any website is not functioning properly, Client shall immediately notify Torque Media in writing. Client agrees that if Client fails to test the functionality of any website and suffers damages as a result, Client shall hold Torque Media harmless from any and all damages of any kind suffered by Client.
  13. Cancellation. By Entering into this agreement you agree to pay the monthly fee for a minimum of twelve (12) months. You may cancel your plan at any time with 60 days advance notice. Cancellation prior to meeting minimum term will require a 25% payment of the remaining terms balance. Torque Media shall retain any fees earned to date of termination. Client must keep a valid credit card on file at all times and authorizes Torque Media to bill this credit card.
  14. Notices. Any notice, demand, request or other communication which may be or is required to be given under this Agreement shall be delivered in person or sent by United States Certified or Registered Mail, postage prepaid, return receipt requested, or by a courier service such as FedEx or UPS, and shall be addressed as follows:
    1. If to client: As listed in the Billing Address of their subscription.
    2. If to Torque Media: Michael Hecht Torque Media 79 Pleasant Ave Burlington, VT 05408
  15. Failure to pay when due. If client fails to pay fees when due, the client shall be responsible for all costs incurred by Torque Media to collect said fees and interest, which costs include but are not limited to attorneys fees, costs of arbitration, and court costs.
  16. Attorney’s Fees, Costs, Venue and Governing Law. In the event any dispute arising between the Parties results in the filing of a lawsuit, the prevailing party, as determined by a Court of competent jurisdiction, shall be entitled to an award of its reasonable attorney’s fees and taxable costs. Arbitration shall occur in Burlington, Vermont, County of Chittenden, State of Vermont, unless otherwise agreed by the parties. This Agreement shall be governed by the laws of the State of Vermont.
  17. Mediation. Before any lawsuit is filed, the Parties to this Agreement must engage in a total of four (4) hours of mediation unless the Parties agree in writing otherwise. If the mediator cannot be agreed upon by the Parties, then each Party will select one mediator and those mediators shall agree upon one mediator to preside over the matter. The presiding mediator’s fees shall be split equally between the Parties.
  18. Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provisions shall be fully severable.

Master Terms

STATEMENT OF WORK.

All services by Torque for You shall be set forth in one or more Statement of Work (“SOWs”) prepared by Torque and hereby incorporated into this Agreement.  To be effective, any SOW must be mutually agreed upon and executed by both parties.  Any SOW may be updated, upgraded, or amended only pursuant to a writing executed by both parties.

The SOWs shall set forth, among other things, the specific services to be provided by Us, including, for example, all Torque products or services subscribed or utilized, any ongoing provision of services in connection with updating, upgrading, or providing hosting or maintenance services, consulting or training services for You, or any milestones, schedules, or products or services developed or delivered to You pursuant to this Agreement (“Deliverables”), as well as the associated fees payable to Us.

Where applicable, Torque will notify You in writing when Your Deliverables are available for Your review. Within three business days of Our sending such notice to You, the Services shall be deemed activated, unless Torque receives written notice from you during such three business day period of Your request for material changes to the Deliverables as outlined in the SOW. We will make any reasonable changes to the Deliverables You request, as long as the requests were part of the original SOW, and resubmit our notice that the Deliverable is available for Your review, restarting the three business day activation period.

TERM. 

The “Term” of this Agreement shall be from the Effective Date plus one (1) year from the delivery of any Deliverables.  The Term shall automatically renew for successive one-year Terms (“Renewal Term”) unless terminated by either party as set forth below. 

LICENSE. 

Where applicable, Torque grants to You, for the Term, a nonexclusive, nontransferable, revocable, non-sublicensable, worldwide right and license (the “License”) to use the Deliverables set forth in any SOWs, and any Torque Media Intellectual Property incorporated within those Deliverables, to promote Your business and conduct Your business.  

“Torque Media Intellectual Property” shall include, without limitation, all concepts, inventions (whether or not protected under patent laws), works of authorship, moral rights, mask works, software, trademarks, trade names, trade dress, trade secrets, publicity rights, copyrights, know-how, ideas (whether or not fixed in a tangible medium of expression or protected under trade secret laws), all Deliverables or any portions thereof (including the design, look and feel, format, graphics (including all custom logos or graphics created by Us or Our licensees) associated with any Deliverables), and all other subject matter protected under any other proprietary law or right used by Us, in whole or in part, in connection with any Deliverables provided to You pursuant to this Agreement or any Statement of Work, as well as any other matters expressly identified in any SOW.

This License expressly prohibits You from disassembling, decompiling or reverse engineering the Torque Media Intellectual Property. In addition, You agree not to allow any third parties to view or copy Our software, including source code, object code or any other portion of Our software, without Our prior written consent. Except as expressly provided in this Agreement, nothing contained in this Agreement shall be construed as granting You any ownership interest in and to any Torque Media Intellectual Property. Nothing in this Agreement waives or limits extra-contractual rights or remedies available to Torque Media to protect the intellectual property rights afforded to it under the law of any jurisdiction, including, but not limited to, trademarks, trade dress, and service marks. 

PAYMENT. 

Upon the Effective Date, You shall pay Torque any fees as set forth in the SOWs, including fees required for any Deliverable or License, or activation thereof, and shall continue payments as set forth in such SOW on a monthly basis, with payments due by the first day of each month for that month.  Payment must be received within 30 days to avoid de-activation of any Deliverable.  Torque reserves the right to terminate, deactivate, or restrict access to all Deliverables to You for non-payment of fees.  

CLIENT MATERIALS.

Any text, logos, images, graphics, Internet domain names, data, customer lists and information or other intellectual property created by You without Our input and used in connection with or incorporated into any Deliverables (the “Materials”) shall remain Your property. You hereby represent and warrant that You have the legal right to possess, publish and otherwise use all of the Materials You provide to Us for any reason in connection with this Agreement or any SOWs and that Our and Your use of the Materials on or in connection with any Deliverables will not infringe or violate the intellectual property rights or any other rights of any third party, including rights pursuant to a non-disclosure agreement. You grant to Us, for the Term, a worldwide, nonexclusive, nontransferable, revocable, non-sublicenseable, royalty-free right and license to use the Materials in connection with any Deliverables. In addition, as of the Effective Date, You grant to Us a perpetual, nonexclusive, nontransferable, revocable, non-sublicensable, royalty-free worldwide right and license to use, display, transmit and broadcast Your name or mark in a general listing of Our customers or otherwise in Our advertising and marketing materials distributed to Our customers and potential customers.

CONFIDENTIAL INFORMATION. 

During the Term and to satisfy any Deliverables or Services, the parties may exchange information that is proprietary or confidential to the other party, whether or not marked as such, including, but not limited to, financial information, product plans, business plans, trade secrets, technology diagrams, designs, drawings, sketches, flow charts, or any other proprietary information that constitutes valuable trade secrets, whether transmitted orally, in writing, or by any other media. 

Both parties agree to use Confidential Information solely in accordance with the provisions of this Agreement; and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without the other party’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own Confidential Information, but in no event shall a party use less than reasonable care. Such obligations shall not extend to information that: (i) is, as of the time of its disclosure or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was rightfully known to the receiving party as of the time of its disclosure; (iii) is independently developed by the receiving party; (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party; or (v) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the disclosing party shall provide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy. In the event that a protective order or other appropriate remedy is not obtained, the disclosing party agrees to disclose only that portion of the Confidential Information that is required.   In the event of actual or threatened breach of the provisions of this Section regarding Confidential Information, both parties agree that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages. 

TERMINATION. 

Unless otherwise set forth in any SOW, either party may terminate this Agreement without cause upon thirty (30) days written notice prior to the end of the Term or Renewal Term. 

To be effective, any termination notice from You must be: (i) in writing; and confirmed in writing by Torque Media, which written verification shall not be withheld by Torque Media provided that such notice cancellation is permitted pursuant to the terms of this Agreement or any SOW. If sent via certified mail, Your notice shall be sent to: Torque Media, 79 Pleasant Ave, Burlington VT 05408, or to any other address Torque Media may designate to You in writing. If sent via e-mail, Your notice shall be sent to billing@torquemedia.co. 

Upon termination of this Agreement, Torque shall turn off, shut down and/or deactivate all applicable Deliverables, and any and all Licenses granted hereunder shall terminate. You shall immediately discontinue use of all Deliverables or Licenses, Our Confidential Information, and Torque Media Intellectual Property, and, where applicable, deliver to Torque Media all Torque Media Intellectual Property and all embodiments of Torque Media Confidential Information that You may have in Your possession or within Your control. Within thirty (30) days after termination of this Agreement, Torque will return to You all Materials and all of Your Confidential Information.  

Either party may terminate this Agreement and/or terminate or deactivate any Deliverable if the other party is in breach of any material provision of this Agreement and fails to cure such breach within thirty (30) days of written notice by the non-breaching party. Failure to pay any invoiced fees within thirty (30) days after the date of the invoice shall be deemed a material breach of this Agreement. You will be charged a minimum fee of Two Hundred Fifty Dollars ($250.00) to turn on or re-activate any Deliverable.  

Torque may immediately terminate this Agreement and/or immediately terminate or deactivate any Services upon the occurrence of the following: (i) Your use of any Deliverable in a manner that is illegal, fraudulent, or otherwise in express violation of the terms of this Agreement or any applicable Statement of Work; or (ii) You become insolvent, You file a bankruptcy petition, You become the subject of an involuntary bankruptcy petition, You make a general assignment for the benefit of creditors, the appointment of a receiver for Your business, property or assets by a court of competent jurisdiction, or You cease to conduct business. 

Termination shall not relieve You of Your liability to Torque Media for all fees accrued and owed, and You shall pay, within thirty (30) days of the effective date of termination, all amounts owing to Us for any Deliverables, Services, or Licenses. You shall reimburse Us for any reasonable attorneys fees Torque Media incurs in collecting any outstanding fees owed to Us by You upon termination of this Agreement.  

INDEMNIFICATION. 

You hereby agree to indemnify Us (and our agents, officers, directors and contractors) and hold Us (and Our agents, officers, directors and contractors) harmless in the event of any and all third party claims, liabilities, damages, costs, expenses (including all reasonable attorneys fees) related to or arising from the use of the Materials. We agree to indemnify You and hold You harmless in the event of any and all third party claims, liabilities, damages, costs, expenses (including all reasonable attorneys fees) related to or arising from Your use of Our Services or Deliverables so long as such claims, liabilities, damages, costs or expenses are not related to or do not arise from the inclusion of the Materials in any Services or Deliverables. 

DISCLAIMER OF WARRANTY. 

TORQUE DOES NOT WARRANT THAT ANY SERVICES PERFORMED OR DELIVERABLES DELIVERED HEREUNDER WILL BE ERROR-FREE. IN CONNECTION WITH ALL DELIVERABLES DELIVERED OR SERVICES PROVIDED, TORQUE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOUR SOLE REMEDY FOR OUR BREACH OF ANY WARRANTIES HEREUNDER IS AS SET FORTH HEREIN.

LIMITATION OF LIABILITY. 

IN NO EVENT SHALL TORQUE MEDIA BE LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE SET-UP FEES OR MONTHLY FEES ACTUALLY PAID (AS APPLICABLE) BY YOU TO US FOR SERVICES PROVIDED HEREUNDER, OR FOR ANY DAMAGES, ATTORNEYS FEES AND OTHER EXPENSES ARISING FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES OR DELIVERABLES PROVIDED BY YOU UNDER THIS AGREEMENT. IN NO EVENT SHALL TORQUE MEDIA (OR OUR OFFICERS, DIRECTORS, AGENTS, CONTRACTORS OR EMPLOYEES) BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. TORQUE MEDIA WILL NOT BE LIABLE TO YOU FOR INTERRUPTIONS OR DEGRADATIONS OF SERVICES DUE TO LACK OF INTERNET CAPACITY OR EQUIPMENT LIMITATIONS, MODIFICATIONS, REPAIRS, UPGRADES OR RELOCATIONS. TORQUE MEDIA SHALL NOT BE LIABLE TO YOU FOR INTERCEPTION OF DATA THROUGH THE INTERNET BY THIRD PARTIES. TORQUE MEDIA HAVE NO CONTROL OVER, ARE NOT RESPONSIBLE FOR AND WILL NOT BE LIABLE TO YOU FOR THE ACTIONS OF INTERNET SYSTEMS AND SERVICE PROVIDERS OR ACTS OF GOD THAT CREATE DELAYS OR INTERRUPTIONS OF SERVICES. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES’ AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH THE PARTIES’ OBLIGATION UNDER THIS AGREEMENT. THE APPLICATION OF ANY OF THESE PROVISIONS MAY BE CONTRARY TO THE LAWS OF YOUR STATE OF RESIDENCE; IN SUCH CASE, ONLY THOSE PROVISIONS LAWFUL IN YOUR STATE SHALL APPLY TO YOU. 

GENERAL.

This Agreement constitutes the entire Agreement between You and Us and supersedes all prior or contemporaneous agreements between the parties concerning the subject matter herein.  Each party represents and warrants that it has the requisite authority and power to enter into and enforce this Agreement and that no consent of any other person or entity is required by it to grant any rights granted hereunder other than consents that have been obtained and are in effect.  Torque may subcontract Our work to be performed hereunder with Your prior written consent, which consent shall not be unreasonably withheld.  This Agreement shall be binding upon the parties’ respective successors and permitted assigns. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.  No breach of any provision of this Agreement or of any Statement of Work can be waived unless such waiver is in writing and signed by the waiving party. Waiver by a party or performance of any provision of this Agreement shall not invalidate this Agreement, nor shall it be deemed to be a waiver by such party of any other provision.  If any portion of this Agreement is held to be invalid, illegal or unenforceable, that portion shall be severed from this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall be enforced to the extent permitted by law consistent with the intent of the parties.  This Agreement is governed by and shall be construed and governed according to the laws of the State of Vermont without regard to conflicts of laws provisions or principles.