Master Services Agreement
This Master Services Agreement (“Agreement”) is made and entered into by and between Gente Now, with an address at 3711 Long Beach Blvd., Long Beach, CA 90807 (“Gente Now”), and you, the Client, (“Client” or “you”) in connection with the subscription of Gente Now’s services.
In consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, and intending to be legally bound, the parties agree as follows:
1. Provision of Services. Client hereby engages Company to provide the Services and Company hereby agrees to provide the Services on the terms and conditions contained in this Agreement.
2. Kickoff Document. Company shall deliver to Client a document requesting information from Client (the “Kickoff Document”), including, without limitation, information regarding background on Client, which will be used by Company as the basis for the Services to be provided by Company. Client acknowledges and agrees that Company cannot and will not begin providing the Services until the Kickoff Document, as completed by Client, is returned to Company.
3. Changes. In the event Client desires changes and/or modifications to the specifications of the Services, Client shall notify Company, in writing, the details of the changes desired by Client (the “Change Request”). Company shall inform Client, in writing (the “Change Request Response”), (a) if Company is able to accommodate the changes set forth Change Request, and if Company is able to do so, (b) the anticipated delay in the delivery of the Services resulting from such changes, and (c) the additional fees, costs and expenses Client will be responsible for in connection with such changes. Client shall notify Company, in writing, of its election to either withdraw the Change Request or to proceed with the proposed changes and/or modifications set forth therein, in which case the Change Request and the Change Request Response shall automatically become part of this Agreement and be incorporated herein by this reference.
4. Delivery of Services; Account Access; Client Responsibilities.
4.1 Delivery of Services. Notwithstanding anything to the contrary contained in this Agreement, but subject to any exceptions expressly set forth in this Agreement, Company shall provide the Services.
4.2 Account Access; Credentials. Client acknowledges and agrees that for security reasons, Company shall not provide to Client, and Client shall not be entitled to receive from Company or otherwise, access to any of Company’s advertising accounts or any advertising account credentials with third party media companies or otherwise. Company may periodically, at times determined by Company, in its sole discretion, or upon written request by Client, provide to Client reports regarding advertising activities. In the event of termination of this Agreement, Company transfer account information to Client but campaign build data will not be transferred or provided.
4.3 Client Responsibilities. Notwithstanding anything to the contrary contained in this Agreement, the following are Client’s responsibilities:
(a) Obtaining, securing and/or registering any and all intellectual property, including, without limitation, trademarks and copyrights, in any way relating to the Client’s name and/or business, including, without limitation, for use on Client’s website, whether prepared, delivered and/or published by Company or Client.
(b) Obtaining all necessary releases, including, without limitation, from individuals and owners of any real property, in connection with any photo or video shoots undertaken by Company or its agents or representatives for Client’s benefit, including, without limitation, as the same relate to the provision of Services by Company.
(c) Compliance with all applicable laws and regulations, including, without limitation, state bar rules and regulations, including, without limitation, as the same relate to advertising, communication and solicitation.
(d) Violation, infringement or alleged violation or infringement of any intellectual property or other rights of any third party resulting from, or arising out of, the provision of Services hereunder. Client hereby represents and warrants that any and all information, intellectual property and other content provided by Client to Company to facilitate the performance of the Services by Company (i) belong to client, have not been recycled, copied or otherwise taken from any source not originally belonging to Client, and (ii) do not and shall not infringe upon or otherwise violate the intellectual property or other rights of any third party.
(e) Providing Company and its agents and representatives any false, fraudulent, deceitful, dishonest or inaccurate claims or advertising materials
(f) Client hereby agrees to indemnify, defend and hold Company harmless from and against any and all claims, liabilities, losses, damages and/or actions, directly or indirectly resulting from or arising out of Client’s failure to comply with any of the provisions of this Agreement and/or the breach of Client’s representations and warranties.
5. Fees and Expenses.
5.1 Fees. Client hereby agrees to, and shall, pay to Company the fees and expenses as agreed.
5.2 Hosting+; Site Transfer.
5.2.1 Provided (a) Client remains a member of Company, (b) continues to subscribe to and pay for the Services as set forth in this Agreement, and (c) is not in default of any of the terms and conditions of this Agreement, Company shall provide the services.
5.2.2 In the event Client elects to terminate this Agreement and its membership of Gente Now, but desires to preserve its use of the website created and delivered by Company pursuant to the terms of this Agreement, and provided Client is not in default of its obligations under this Agreement, Client shall notify Company, in writing, no later than five (5) days after Client terminates its membership of Gente Now and ceases to subscribe to and pay for the Services as set forth in this Agreement of Client’s election to either:
(i) Host Client’s website, in which case Client hereby agrees to, and shall, pay to Company, in addition to any other fees and expenses set forth herein, a monthly fee in the amount of $199.00 for the Hosting+ Services, which amount shall be paid by Client in advance on the first (1st) day of each month during which such services are to be provided; or
(ii) Terminate web-hosting with Company, including, without limitation, any Hosting+ Services provided by Company to Client, in which case, Client shall elect to either (x) forfeit Client’s website, in which case Company shall have no further obligations whatsoever, pursuant to this Agreement or otherwise, to Client, including, without limitation, an obligation to maintain Client’s website or access to it, or (y) request Company initiate a host site transfer of Client’s website, in which case Client shall pay to Company a one-time transfer fee of $699.00. Notwithstanding anything to the contrary contained in this Agreement, Client acknowledges and agrees that Company shall not be obligated to initiate any host site transfer or to provide Client with any credentials for Client’s website until and unless Client has paid all outstanding fees and expenses incurred pursuant to this Agreement. Client acknowledges and agrees that a host site transfer will take up to fourteen (14) days from the date Company receives Client’s notice requesting such host site transfer.
5.3 Minimum Advertising Fee. Client acknowledges and agrees that in order to facilitate and optimize the Services by the Company, Company may engage, on behalf of Client, third party media companies, including, without limitation, Google, Facebook/Meta, Instagram, YouTube, TikTok, Bing, Groundtruth and Hulu, for advertising Client’s business and website. Client hereby authorizes Company to engage such third party media companies on behalf of Client. Client shall pay such third party and/or authorizes Company to provide Client’s payment information, including, without limitation, bank and/or credit card information, to such third party, a monthly fee as a “Minimum Advertising Fee” (the “Minimum Advertising Fee”), which shall be automatically charged by the third party media companies pursuant to the policies of such third party media companies, which may change from time to time. Client acknowledges and agrees that (a) the amount of the Minimum Advertising Fee may be adjusted from time to time upon Client’s request, in writing, to Company, (b) the method of billing and charging the Minimum Advertising Fee is under the sole control of the third party media companies engaged on behalf of Company pursuant to this Agreement, and (c) Company has no control whatsoever over such billing practices or the frequency in which such third party media companies bill Client. Client hereby agrees to indemnify, defend and hold Company harmless from and against any claims, liabilities, losses or actions resulting, in any manner whatsoever, from the Minimum Advertising Fee.
5.4 Payment Through Termination. Client agrees that Company is entitled to payment of the fees and expenses for the Services set forth in this Agreement up to and including the date of termination of this Agreement and/or Client’s membership of Company.
5.5 Taxes. Client acknowledges and agrees that the fees and expenses set forth in this Agreement are exclusive of any and all federal, state, local or other sales, use or other taxes or fees assessed on or otherwise incurred in connection with any of the Services rendered pursuant to this Agreement. Client further acknowledges and agrees that Client is solely responsible for any and all tax liability relating to the Services and/or the fees and expenses relating thereto. Company hereby agrees to indemnify, defend and hold Company harmless from and against any claims, liabilities or actions relating to such tax liability.
5.6 Fees Subject to Change. Client acknowledges and agrees that the fees and other charges and expenses set forth in this Agreement are subject to change upon thirty (30) days prior written (by e-mail only) notice to Client.
5.7 Interruption of Services for Non-Payment. Client acknowledges and agrees that timely payment of all fees and other charges for the Services, set forth in this Agreement is critical to ensure provision of uninterrupted Services by Company hereunder. In the event any amounts due hereunder, including, without limitation, the fees and other charges set forth in this Agreement and/or any Delinquent Payment, remain outstanding for twenty one (21) days or more, Company may, in addition to any other remedies available to Company at law or in equity, at Company’s discretion, without notice, unpublish, suspend, delete or otherwise shut down Client’s website (“Site Shutdown”). Client acknowledges and agrees that Company shall not be liable for any damages resulting from such Site Shutdown. In the event of a Site Shutdown, if (a) Client’s website has not been permanently shut down, (b) Client pays, in full, all Delinquent Amounts, late charges, accrued interest and other amounts due and payable hereunder, and (c) any reasonable conditions required by Company are satisfied by Client, upon written notice (by e-mail only) by Client to Company, Company may, at Company’s sole and absolute discretion, restore the Website. Client further acknowledges and agrees that failure to pay any invoices of Company within seven (7) days will, at the sole discretion of Company, result in the suspension of all Services hereunder until Company is in receipt of full payment by Client of all such amounts.
5.8 Payment Information and Authorization. Upon execution of this Agreement, and as a precondition to Company’s obligation to provide the Services described herein, Client shall provide to Company all banking and credit card information of Client required by Company to enable Company to automatically, without notice, charge Client for the fees and other charges set forth herein, for the Services, pursuant to the provisions hereof. Client hereby authorizes Company to (i) use Client’s banking and credit card information to, automatically and without prior notice, charge Client for Services rendered by Company pursuant to the provisions of this Agreement in accordance with the provisions hereof, and (ii) provide Client’s banking and credit card information to third party media companies for payment of the Minimum Advertising Fees pursuant to the provisions of this Agreement. Client acknowledges and agrees that any payments made by credit card, whether to Company or to third party media companies, will incur an additional three and one half percent (3.5%) processing fee.
5.9 Payments Non-Refundable. Client acknowledges and agrees that all payments made pursuant to the terms of this Agreement are non-refundable.
6. Term; Termination.
6.1 This term of this Agreement shall commence on the Effective Date set forth above, will continue for ninety (90) days from the live date of the advertising campaign (“Initial Term”) and shall automatically renew for periods of ninety (90) days each unless terminated by Client or Company in accordance with the provisions of this Agreement.
6.2 Subject to the provisions of this Agreement, Company shall have the right to terminate this Agreement upon no less than thirty (30) days prior written notice (the “Termination Notice”), which shall be delivered to the other party at least thirty (30) days prior to the expiration of the then term, as the same may have been extended pursuant to this Agreement. Client shall have the right to terminate this Agreement upon provision of a Termination Notice, which shall be delivered to the other party at least thirty (30) days prior to the expiration of the then term, as the same may have been extended pursuant to this Agreement. Notwithstanding the foregoing, Client cannot terminate this Agreement during the Initial Term.
6.3 If either party hereto desires to terminate this Agreement due to a material breach or default of this Agreement by the other party (the “Breaching Party”), the party desiring to terminate shall provide written notice detailing the alleged breach or default to the Breaching Party (the “Notice of Breach”). If the alleged breach or default relates to a failure by the Breaching Party to pay any amounts due and payable under this Agreement, the Breaching Party shall have three (3) days from the date of the Notice of Breach to cure such breach by paying all such amounts to the non-breaching party. In the event the Breaching Party fails to cure such monetary breach or default in the within such three (3) days, in addition to any other remedies that may be available to the non-breaching party at law or in equity, the non-breaching party shall have the right to immediately terminate this Agreement. If the alleged breach or default in nonmonetary, the Breaching Party shall have ten (10) business days from the date of the Notice of Breach to cure such breach to the reasonable satisfaction of the non-breaching party. In the event the Breaching Party fails to cure such nonmonetary breach or default to the reasonable satisfaction of the non-breaching party within such ten (10) business days, or if such nonmonetary breach or default is not capable of cure, in addition to any other remedies that may be available to the non-breaching party at law or in equity, the non-breaching party shall have the right to immediately terminate this Agreement.
6.4 Upon termination of this Agreement by (a) Client, or (b) by Company for cause, including, without limitation, as a result of a breach or default by Client (i) Company shall have no further obligations whatsoever to Client and (b) Client acknowledges and agrees that in the event this Agreement is terminated prior to the completion of some or all of the Services, that Company shall be excused from its obligation to complete any unperformed or undelivered Services, unless otherwise agreed to in writing, executed by Company and Client.
7. Work for Hire. Other than otherwise provided in this Agreement, Company agrees that Client shall be the sole and exclusive owner of all right, title and interest in and to any and all tangible and intangible works, materials, ideas, products, services, developments, projects and other matters developed, created, conceived, suggested, submitted or otherwise worked on by Company in connection with the Services at any time during the term of this Agreement, and the results and proceeds of the Services hereunder, in whatever stage of completion (collectively, the “Property”), shall be deemed “work made for hire” for Client as that term is defined in Section 101 of the 1976 Copyright Act and is the sole and exclusive property of Client. All rights related to such work, together with any additions thereto or derivations thereof and rights to renewals and extensions of any of the foregoing shall, upon creation, be the sole property of Company. Unless otherwise provided in this Agreement, Company also agrees that Client shall have the sole and exclusive right in perpetuity to use, exploit, distribute and otherwise turn to account any or all of the Property, and that Client may modify, change or alter all or any part of the Property, all as Client may determine from time to time in its sole and absolute discretion. Notwithstanding the foregoing, any of Company’s ad strategy and data is not included in the definition of Property or work for hire.
8. Indemnification. Notwithstanding anything to the contrary contained in this Agreement and in addition to any and all other indemnification obligations contained in this Agreement, Client hereby agrees to indemnify, defend and hold harmless Company and its shareholders, directors, officers, members, managers, employees, accountants, agents, representatives, successor and assigned (collectively, the “Indemnified Parties”) from and against any and all third party claims, damages, liabilities, actions, suits, costs and expenses, including, without limitation, legal fees and expenses, directly or indirectly resulting from, arising out of or related to (i) Client’s breach of any express representations and warranties set forth in Agreement, (ii) Client’s breach of this Agreement or any provision hereof, (iii) Client’s failure to perform its obligations under this Agreement, (iv) Company’s coordination of and/or management, on behalf of Client, of any accounts with any third party, including, without limitation, third party media companies, and (v) the Services provided by Company pursuant to the terms of this Agreement, including, without limitation, the operation, provision or maintenance of the website developed for Client, advertising accounts, or any other services offered by Company. Company shall have the right, but not the obligation, to control the defense and/or settlement of any claim in which and Indemnified Parties are named as a party. Company and/or any of the Indemnified Parties shall have the right to participate in any defense of a claim by Client with counsel of the Indemnified Party’s choice, at the expense of Client.
9. Limitation of Liability. Client agrees that Company shall not be liable to Client for (i) any liability claims, loss, damages, or expense of any kind arising directly or indirectly out of services provided pursuant hereto, including, without limitation, the Services, or (ii) any incidental, consequential or punitive damages, however caused. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings, loss of or damage to business reputation or good will, loss of customers or clients, loss of business or financial opportunity, or any other indirect or special damages of any kind categorized as consequential or incidental damages under Californialaw. Client further acknowledges and agrees that Company’s liability for any damages directly or indirectly arising out of or resulting from this Agreement or the Services, shall in no event exceed the amounts paid by Client to Company as of the date the alleged damages were incurred.
10. Force Majeure. Company shall be excused from performance of its obligations hereunder for any period and to the extent it is prevented from performing it obligations, in whole or in part, as a result of Force Majeure (defined below). For the purposes of this Section 10, “Force Majeure” means a material delay beyond the reasonable control of Company caused by labor strikes, lock‑outs, service interruptions by third parties, including, without limitation, third party media companies, industry‑wide inability to procure materials, extraordinary restrictive governmental laws or regulations (such as gas rationing), mass riots, war, military power, sabotage, material fire or other material casualty, severe weather, or an act of God.
11. Dispute Resolution. In the event of a dispute between Company and Client in any way relating to this Agreement or the enforcement of the terms and conditions hereof (“Dispute”), Company and Client shall attempt in good faith to settle the Dispute through mediation conducted by a mediator to be mutually selected by the parties. The parties shall share the costs of the mediator equally. In the event Company and Client are unable to agree on a mediator, (i) each of Company and Client shall select one mediator within ten (10) days of the date either party provides written notice (the “Mediation Notice”) of its desire to mediate the Dispute to the other party, (ii) the two mediators selected shall select a third mediator within fifteen (15) days of the date of the Mediation Notice, (iii) each party shall pay the cost of the mediator selected by such party, and (iv) the parties shall share the costs of the third mediator equally. Each party shall cooperate fully and fairly with the mediator(s), to reach a mutually satisfactory compromise of the Dispute. If the Dispute is not resolved within thirty (30) days after it is referred to the mediator(s), it shall be resolved through final and binding arbitration conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), sitting in Los Angeles County, California, for resolution by a single arbitrator acceptable to both parties. If the parties fail to agree to an arbitrator within ten (10) days of a written demand for arbitration being sent by one party to the other party, then JAMS shall select the arbitrator according to the JAMS Rules for Commercial Arbitration. The arbitration shall be conducted pursuant to the rules of JAMS. The award of such arbitrator shall be final and binding on the parties, and may be enforced by any court of competent jurisdiction. In the event of arbitration to resolve a Dispute, the prevailing party shall be entitled to recover its attorney’s fees and other out-of-pocket costs incurred in connection therewith from any non-prevailing party involved therein. Notwithstanding the immediately preceding sentence, if either party pursues arbitration before first attempting mediation as required in this Section 11, such party shall not be entitled to attorneys fees even if it is the prevailing party.
12. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of California. No rights or obligations hereunder may be assigned by either party without the prior written consent of the other. This Agreement shall inure to the benefit of and be binding upon any successor of Company. If any provision of this Agreement shall be invalid and legally unenforceable, the same shall not affect in any respect whatsoever the validity and enforceability of the remainder of this Agreement. This Agreement cannot be amended, modified or supplemented in any respect except by an Agreement in writing signed by the party against whom enforcement of any amendment, modification or supplement is sought. This Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on all the parties hereto even though all the parties are not signatories to the original or the same counterpart. Subject to the provisions of this Agreement, in the event an arbitration, suit or action is brought by any party under this Agreement to enforce any of its terms, or in any appeal therefrom, it is agreed that the prevailing party shall be entitled to reasonable attorneys’ fees to be fixed by the arbitrator, trial court, and/or appellate court.
13. Additional Considerations.