PROFESSIONAL services agreement (MASTER TERMS)
This PROFESSIONAL SERVICES AGREEMENT (MASTER TERMS) (the “Agreement”) is by and between THE WHOLE BRAIN GROUP, LLC, a Michigan limited liability company, with its principal place of business at 315 E. Eisenhower Pkwy, Suite 300, Ann Arbor, Michigan 48108 (“WBG”) and you (the “Customer”) (each of WBG and Customer, a “Party”; together, the “Parties”).
1. Scope of Agreement. This Agreement is intended to be the master agreement under which Customer can request professional services to be performed by WBG (the “Services”). Customer and WBG may agree on such Services under one or more written Statements of Work (“SOWs”) signed by both Parties. If no Services are described in a SOW, then Services will be performed by WBG for Customer on an agreed upon time and materials basis per the direction of Customer. Any SOW between the Parties will be governed exclusively by the terms of this Agreement, whether or not this Agreement is specifically mentioned. To the extent there is any inconsistency between this Agreement and any SOW, the SOW will govern the performance of Services thereunder.
2. Termination. WBG may terminate this Agreement or any SOW issued in connection with this Agreement for any reason upon thirty (30) days advance written notice to Customer; provided, however, WBG shall not terminate this Agreement or any SOW issued in connection with this Agreement until it has completed the performance of all Services on all SOW’s issued in connection with this Agreement unless either (i) such termination is otherwise agreed to in writing by Customer or (ii) Customer has not cured a material breach of this Agreement within thirty (30) days of receiving written notice of the asserted breach. Notwithstanding the foregoing, either Party may immediately terminate this Agreement or any SOW if the other Party has appointed a trustee for the benefit of its creditors, becomes insolvent, bankrupt or initiates a voluntary dissolution. Absent the statement of a specific term in a SOW for any Services to be performed by WBG, either Party may cancel this Agreement upon thirty (30) days prior written notice.
3. Independent Contractor / Authority to Make Statements.
3.1 WBG is an independent contractor and nothing in this Agreement or related to WBG’s performance under any SOW will be construed to create an employee relationship between Customer and WBG or any WBG employee or agent.
3.2 To the extent required to perform the Services, Customer hereby grants WBG the right to open, operate and maintain social media accounts on behalf of Customer with various providers such as Google, LinkedIn, Facebook, Twitter, MailChimp and such other sources as the Parties may agree upon from time-to-time. If included within the Services, such accounts will be maintained for the benefit of Customer and after the conclusion of this Agreement and the payment of all fees due to WBG hereunder, WBG will turn over to Customer all user names and passwords associated with these accounts. While the authority granted to WBG in this Agreement does permit WBG to make statements on behalf of Customer if contemplated by the performance of the Services, WBG agrees that it does not have the authority to make any statements that legally are binding on behalf of Customer as Customer’s agent. At all times, Customer agrees to act in accordance with all agreements (such as Terms of Service) relating to any social media accounts that WBG may operate for the benefit of Customer. The Parties acknowledge that WBG’s liability with respect to any Services are limited as described in Sections 5, 6 and 7 of this Agreement.
3.3 In some circumstances, as part of the Services, WBG may either make recommendations or assist in the procurement of services (such as hosting services) from third parties for the benefit of Customer. In all such circumstances, WBG will be under no obligation to enter into contracts with such third parties for the benefit of Customer. Instead, WBG will present the contracts for such business relationships to Customer for consideration. If Customer accepts such contract, then Customer will be solely liable to the third party for performance under the contract and solely responsible for taking any legal actions necessary to obtain the benefits of such contracts. If Customer does not accept any such contract, then Customer can find an alternate provider for such proposed goods or services on their own or seek WBG’s assistance in finding a replacement, subject to WBG’s then current costs for providing such services. However, in no circumstances will WBG be deemed to be in violation of any of its obligations under this Agreement or any SOW to the extent that Customer refuses to contract with a suitable third party for the performance of services or provision of goods that are reasonably required before WBG may complete the Services. Further, in no circumstance will WBG have any liability for the performance or lack thereof by any such third party who contracts directly with Customer, regardless of whether or not WBG recommended such third party to Customer.
4. Pricing and Payment Terms.
4.1 Customer will pay WBG for Services in accordance with the fees established in the relevant SOW. Unless otherwise stated in a relevant SOW, all Services performed by WBG will be billed on a time and materials basis.
4.2 Customer will reimburse WBG for actual expenses incurred by WBG in performing the Services. A summary of expenses (including, but not limited to, travel and mileage) sorted by major category will be included in the invoice for the associated Services, but only to the extent that said expenses are approved by Customer in writing in advance.
4.3 Fees and expenses for all undisputed fees for Services will be periodically invoiced by WBG and payment for all undisputed fees is due fifteen (15) days from the receipt of invoice by Customer. Customer agrees to pay a late charge of one and one half percent (1½%) per month or the maximum lawful rate, whichever is less, for all amounts not paid within fifteen (15) days of the date of invoice.
4.4 Amounts payable by Customer hereunder do not include local, state or federal sales, use, value-added or other taxes based on the services provided under this Agreement. Customer will pay all such taxes as may be imposed upon WBG or Customer, except income tax imposed on WBG by the United States of America or any state thereof. Customer will be invoiced for, and Customer will pay, such taxes if WBG is required to pay them on Customer’s behalf.
4.5 Customer acknowledges that its failure to pay timely any of the fees payable hereunder, or any portion thereof, unless such fees are being disputed by Customer in good faith and in accordance with this Agreement, will be a material breach of this Agreement for which WBG may, in addition to pursuing all other remedies, terminate this Agreement following Customer’s failure to pay any undisputed fees as provided for in accordance with this Agreement.
5.1 WBG represents and warrants to Customer that: (i) the Services, and its performance thereof, will comply with all applicable federal, state and local laws, requirements and regulations; (ii) that the Services shall be performed and completed in a good and workmanlike manner consistent with industry standards for high quality services; (iii) that WBG and WBG’s employees, subcontractors and third party resources have the requisite expertise and all rights, licenses, permits and consents necessary to perform the Services hereunder; and (iv) that the terms of this Agreement do not violate and will not cause a breach of the terms of any other agreement to which WBG is a party, or any applicable laws or regulations to which WBG is subject.
5.2 WBG warrants that it shall perform the Services in a professional and workmanlike manner utilizing properly trained personnel. For any breach of this warranty, WBG shall exercise commercially reasonable efforts to re-perform any non-conforming Services that were performed within the thirty (30) day period immediately preceding the date of Customer’s written notice to WBG that reasonably states the reasons for the non-conformance of the Services.
5.3 THE EXPRESS REMEDIES SET FORTH IN THIS SECTION WILL CONSTITUTE CUSTOMER’S EXCLUSIVE REMEDIES, AND WBG’S SOLE OBLIGATION AND LIABILITY, FOR ANY CLAIM THAT THE SERVICES WERE PERFORMED IMPROPERLY.
6. DISCLAIMERS. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES MADE BY WBG, THE SERVICES ARE PROVIDED STRICTLY “AS IS,” AND WBG MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY WBG AND ARE EXCLUDED BY THE PARTIES.
7. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF SECTION 8 OF THIS AGREEMENT (CONFIDENTIAL INFORMATION), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE, USE OR BUSINESS INTERRUPTION THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL WBG’S AGGREGATE LIABILITY EXCEED THE GREATER OF (i) THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE THIRTY (30) DAYS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO A CAUSE OF ACTION AGAINST WBG, OR (ii) THE AMOUNT OF ANY APPLICABLE INSURANCE. UNDER NO CIRCUMSTANCES WILL CUSTOMER’S AGGREGATE LIABILITY EXCEED THE GREATER OF (A) THE AMOUNT OF FEES REQUIRED TO BE PAID BY CUSTOMER UNDER THIS AGREEMENT, OR (B) THE AMOUNT OF ANY APPLICABLE INSURANCE. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY SET FORTH IN THIS AGREEMENT, AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES SPECIFIED HEREIN.
8. Confidential Information.
8.1 In the course of providing the Services, either Party (a “Disclosing Party”) may provide certain of its Confidential Information to the other Party (a “Receiving Party”). For purposes of the Agreement, “Confidential Information” will mean written, confidential and proprietary information of a Disclosing Party that is not available in the public domain. A Receiving Party agrees that it will not disclose Confidential Information to any third party and will use the Confidential Information only in connection with the Services. All Disclosing Party Confidential Information will remain the property of the Disclosing Party. The Receiving Party will not reproduce any Disclosing Party Confidential Information without the consent of the Disclosing Party and the Receiving Party will return all Confidential Information at the earlier of the termination of the Agreement or upon the request of the Disclosing Party. Confidential Information will not include information that is (i) previously and independently known to or developed by a Receiving Party; (ii) acquired by a Receiving Party without continuing restriction or use; (iii) becomes or is publicly available through no breach by a Receiving Party under this Agreement. The foregoing obligation regarding Confidential Information will survive the termination or expiration of this Agreement.
8.2 The Receiving Party agrees and acknowledges that Confidential Information of the Disclosing Party is entrusted to it in confidence, and the reputation and success of the Disclosing Party depends on maintaining and safeguarding the secrecy of its Confidential Information. The Receiving Party agrees that during the term of this Agreement and at any time thereafter, it (i) will use the same level of care to protect the confidentiality of the Disclosing Party’s Confidential Information as it does to protect its own Confidential Information, but in no event less than a reasonable degree of care, (ii) will not use any Confidential Information of the Disclosing Party except for the purpose of fulfilling its obligations under this Agreement, (iii) will not, and will not permit others to, disclose, duplicate, transfer, sell, lease, or otherwise make any Confidential Information of the Disclosing Party available to others without the prior written consent of the Disclosing Party, and (iv) will not remove, or permit to be removed, any notice indicating the confidential nature of, or the proprietary rights of the Disclosing Party in, the Disclosing Party’s Confidential Information.
8.3 The Parties acknowledge that WBG may perform on-line digital marketing services as a part of the Services. As a part of such Services, WBG may be asked to provide regular Customer related content for micro-blogging websites. The Parties acknowledge that the immediate nature of such Services will not always allow for pre-approval by Customer of all such content that may be posted. The Parties acknowledge that any disclosures or statements made by WBG in the performance of the Services that are made in a reasonable good faith attempt to promote the best interests of Customer will not be deemed to be a violation of this Section 8 or any other part of this Agreement.
9. Proprietary Rights.
9.1 As between Customer and WBG, Customer will own all right, title and interest in and to the Customer Content. “Customer Content” means all materials provided by Customer to WBG hereunder, including but not limited to text, graphics or materials generated in any form or media. Customer hereby grants to WBG a non-exclusive assignable license to use the Customer Content under the terms and conditions of this Agreement solely in connection with the provision of Services. WBG may make such copies of the Customer Content as may be necessary to perform the Services.
9.2 WBG will not use any Customer Content or Customer marks, logos or other identifiers in any manner other than as is expressly provided for in this Agreement, without Customer’s prior written approval. However, WBG may include the Customer’ name and logo in press releases, feature articles, advertisements and other promotional campaigns relating to WBG.
9.3 All materials, products and modifications developed or prepared by WBG under this Agreement are the property of Customer and all right, title and interest therein shall vest in Customer and are hereby assigned to Customer and shall be deemed to be a “work made for hire” under United States copyright law and made in the course of this Agreement. It is further agreed, that at Customer’s sole cost, WBG will execute and deliver all such further documents as may be reasonably requested, including assignments, original applications and applications for renewal, extension or reissue of such patents, trademark registrations or copyright registrations, in any and all countries, to vest title thereto in Customer, its successors, assigns or nominees.
9.4 Customer shall obtain any and all permission necessary to publish, distribute, copy or otherwise use the Customer Content in association with the provision of the Services.
10. Nonsolicit. Customer agrees that, during the term of this Agreement and for twenty-four (24) months thereafter (the “Restricted Period”), it will not directly or indirectly solicit for employment, hire, offer to hire, enter into a business relationship with or induce to discontinue his or her relationship with WBG, any person who is or was an officer, employee or contractor of WBG during the Restricted Period without WBG’s prior written approval.
11. Indemnification. Customer agrees to indemnify, defend and hold WBG, its directors, officers, employees and agents, harmless from and against any and all claims, losses, expenses, liabilities, demands, obligations or damages of every kind and character without limitation and without regard to its cause or causes or the negligence of any Party, arising out of the conduct of Company’s business or the breach of any obligations of Company under this Agreement.
12.1 Notice. All notices under this Agreement, including notices of address change, will be in writing and will be deemed to have been given when sent by (i) registered mail, return receipt requested, (ii) a nationally recognized overnight delivery service (such as Federal Express), or (iii) electronic mail.
12.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining portions or provisions will remain in full force and effect.
12.3 Governing Law. This Agreement, and all matters arising under or related hereto, will be governed according to the laws of the State of Michigan, without respect to its conflict of law principles.
12.4 Forum. The Parties submit to the exclusive jurisdiction and venue of the state or federal courts having jurisdiction over Washtenaw County, Michigan of any claims or actions arising, directly or indirectly, out of or related to this Agreement. The Parties stipulate that the venues referenced in this Agreement are convenient.
12.5 Waiver. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.6 Assignment. Customer may not assign, by operation of law or otherwise, this Agreement or any right or duty arising hereunder to a third party without WBG’s prior written consent. Any purported assignment in violation of this Section will be void. WBG may assign this Agreement and its rights and obligations hereunder in its sole discretion.
12.7 Survival. Sections 6 – 12 of this Agreement will survive the termination of this Agreement.
12.8 No Third-Party Beneficiaries. This Agreement is an agreement between the Parties, and confers no rights upon any of the Parties’ employees, agents, or contractors or upon any other person or entity.
12.9 Attorneys’ Fees. If a legal dispute arises out of this Agreement due to Customer’s breach, WBG will be entitled to collect its actual attorneys’ fees and costs from Customer.
12.10 Force Majeure. Except with regard to any obligation to pay money hereunder, neither Party hereto will be held responsible for any delay or failure in performance hereunder caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond such Party’s control. If any such contingency does occur, the time to perform an obligation under this Agreement affected thereby will be deemed extended by the length of time such contingency continues.
12.11 Entire Agreement. This Agreement together with the SOWs, which are hereby incorporated herein by this reference, contain all the agreements, representations, and understandings of the Parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party that expressly states the sections of this Agreement to be modified; no other act, usage, or custom will be deemed to amend or modify this Agreement. Customer may, for purposes of administrative convenience, use Customer’s standard form of purchase order to order Services, but the Parties understand and agree that any terms or conditions on any such purchase order in any way different from or in addition to the terms and conditions of this Agreement will have no effect whatsoever and WBG hereby rejects all such terms and conditions, unless any such terms are included in a written amendment to this Agreement.