MASTER SERVICES AGREEMENT
1. Introduction. These Master Services Agreement Terms and Conditions (“Ts&Cs”) form an integral part of the general agreement Lane Change Consulting, LLC, a California limited liability company (“LCC”) enters into with its Clients. These Ts&Cs are incorporated into each SOW (defined below) by reference. Because theseTs&Cs define the rights and obligations of LCC and its Clients, Clients are strongly encouraged to carefully review these Ts&Cs.
2. Specific Words or Phrases. For purposes of this Agreement, each word or phrase listed below shall have the meaning designated. Other words or phrases used in the Agreement may be defined in the context in which they are used, and shall have the respective meaning there designated.
a. “Affiliate” means and includes any entity that directly or indirectly controls, is controlled by, or is under common control with Client, where “control” means the ownership of, or the power to vote, at least twenty percent (20%) of the voting stock, shares or interests of an entity. An entity that otherwise qualifies under this definition will be included within the meaning of “Affiliate” even though it qualifies after Client enters into an SOW with LCC.
b. “Agreement” means the agreement between LCC and a Client, which includes the appropriate SOW, the Tasks to be performed or Deliverables to be produced (set forth in Attachment A to the SOW), the timeline for anticipated completion of the Tasks/Deliverables (set forth in Attachment B to the SOW), the Project Fee and timeframe for payment (set forth in Attachment C to the SOW), and these Ts&Cs, bearing a revision date as set forth in the footer, below, all of which are incorporated into each SOW by reference.
c. “Client” means, for the general purposes of the Master Agreement, the entity designated as the “Client” within a particular SOW. However, for the particular purposes of any agreement that arises as a result of an SOW, reference to “Client” shall be construed solely as a reference to the specific entity (either the entity designated as “Client” or an Affiliate) that executes the SOW.
d. “Completion Date” means the date on which Client accepted (or is deemed to have accepted) all Services or Deliverables associated with a given SOW.
e. “Deliverable(s)” means and includes the item(s) described in Attachment A, attached to the applicable SOW that is or are to be developed, prepared or facilitated by LCC and furnished to Client, and may include (but is/are not necessarily limited to) tasks LCC agrees to perform for Client, scripts LCC prepares, milestones to be achieved by LCC in the performance of Services for Client, images, sketches, drawings, illustrations or other visual content prepared or facilitated by LCC, photographic or video content produced or facilitated by LCC, and voiceovers facilitated by LCC. To the best of LCC’s knowledge and belief, the Work Product/Deliverable will not infringe on the Intellectual Property Rights of any third party.
f. “Graphic Facilitation Services” means, broadly, the design and facilitation of meetings or events using visual methods and tools.
g. “Graphic Recording Services” means, broadly, live, large-scale visual note-taking.
h. “Intellectual Property Rights” or “IP Rights” means all trade secrets, patents and patent applications, trade marks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, business names, internet domain names, e-mail address names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, and any application for the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
i. “LCC Materials” means pre-existing proprietary methodologies, tools, models, software, procedures, documentation, characters, color schemes, drawings or sketches, know-how, processes, or Intellectual Property owned by LCC and used in (and incorporated within) a Deliverable (or any other Work Product), or in performing Services to Client.
j. “Party” means either LCC or Client, individually as the context so requires; and “Parties” means LCC and Client, collectively.
k. “Personnel” means and includes a Party’s or an Affiliate’s directors, officers, employees, managers, members, agents, auditors, consultants, and subcontractors.
l. “Project ” means the particular project described in an SOW.
m. “Project Fee” means the flat fee set forth in an SOW for which Client is obligated to pay for LCC’s Services and/or a Deliverable.
n. “Project Manager” means the person identified by Client as the Project Manager, in accordance with Section __.
o. “Related Party” is defined under Section 6 (Non-Disclosure).
p. “Services” means the services described in an SOW which are to be furnished by LCC to Client, in the production of a Deliverable or otherwise.
q. “Sketch Animation Video Production Services” means, broadly, videos created in a hand-drawn style.
r. “Specifications” means and includes the description of functional, technical, design and performance characteristics of the Deliverables agreed to by the Parties (including any requirements or characteristics specified in, or incorporated by reference into the applicable SOW), and all modifications to the foregoing that are made from time to time by written agreement of the Parties.
s. “Statement of Work” or “SOW” means a transactional document that is entered into pursuant to this Master Agreement by and between LCC and a Client or an Affiliate and describes the Services or Deliverables to be provided by LCC to such Client / Affiliate.
t. “Story Mapping Services” means, broadly, the design and creation of posters or “charts” that illustrate a company or organizational strategy or plan.
u. “Ts&Cs” or “Terms and Conditions” refer to these Master Services Agreement Terms and Conditions.
v. “Work Product” means and includes the Deliverables, all ideas, concepts, know-how, techniques, inventions, discoveries, improvements, specifications, designs, sketches, drawings, methods, devices, systems, reports, studies, computer software (in object or source code), programming and other documentation, flow charts, diagrams and all other information or tangible material of any nature whatsoever (in any medium and in any stage of development or completion) relating to the subject matter of this Agreement, that are conceived, designed, practiced, prepared, produced or developed by LCC or any of its Personnel which is not a derivative work of any LCC Materials and which is not a derivative work of any Licensed Software: (i) during the course of a particular Project; (ii) based upon knowledge or information learned or gained from Client; or, (iii) resulting from the use of Client’s facilities, Personnel, or materials.
w. “Workshop Services” means, broadly, the design and delivery of a training workshop.
3. Term of Agreement; Statement of Work. A Statement of Work shall become effective only when duly signed on behalf of the Parties to be bound thereby, and shall continue in effect through the earlier of: (i) the Completion Date, or (ii) the date of termination specified by either Party in accordance with the following provisions (each, a termination for “Cause”):
a. A material breach of these Ts&Cs or a SOW by either party, including a material breach of a representation or warranty set forth herein, which remains uncured ten (10) days after the non-terminating party receives written notice of the breach from the terminating party;
b. Any act or omission that gives rise to an actual legal or administration claim or action, or a written allegation that such act or omission has or could expose the other party to liability to others for personal injury, property damage, infringement of intellectual property rights, rights of publicity, or any other legal claim, or other harm, loss, or damage; and
c. A failure by either party to be reasonably responsive to communications, questions or inquiries, or a request for approval or signoff on some element of the Project by the Project Manager. Unless the facts and circumstances substantially and reasonably support another conclusion, consistent failure to respond to communications, questions or inquiries within three (3) business days shall constitute a failure to be reasonably responsive.
For the avoidance of doubt, notice of termination for any particular SOW shall not be construed to be notice of termination for any other SOW.
4. Deliverables. An SOW may set forth the Deliverables to be produced or facilitated by LCC. LCC shall use its good faith effort to comply with any deadline or date associated with a particular Deliverable. Any delay in LCC’s performance which is reasonably attributable to Client’s action or inaction shall cause any such deadline or date to be extended. Unless expressly set forth in an SOW, time is not of the essence in the production of any Deliverable.
a. Project Completion. A Project shall be deemed to have been successfully completed upon Client’s acceptance of all Services or Deliverables associated with the SOW.
5. Fees and Payment Terms.
a. Fixed Fee Projects. With respect to Projects on a fixed fee basis, LCC will send an invoice to the Client on or shortly after the Completion Date. In LCC’s discretion, it may send Client interim invoices, to the extent progress payments are called for under the SOW, or if LCC has incurred expenses for which it is entitled to reimbursement. Payments are due within thirty (30) days of the invoice date.
b. Hourly Rate Projects. With respect to hourly rate Projects, LCC will send an invoice to the Client on a monthly basis. Unless otherwise specified in a SOW, LCC’s hourly rate is one hundred seventy-five dollars ($175) per hour
c. Reimbursable Expenses. Client agrees to reimburse LCC for expenses LCC incurred at the request of Client or which have been approved in advance by Client’s Project Manager. Notwithstanding the foregoing, LCC and its Personnel are entitled to reimbursement for the costs of parking at any location necessitated by the Project. For each item of expense for which reimbursement is requested, Contractor will submit substantiating documentation in accordance with Client’s reasonable policies. All approved business expenses and pass-through charges will be reimbursed at cost (as actually incurred), without mark-up.
d. Cancellations. If Client cancels an SOW other than in the case of a Termination for Cause (defined in Section __), then:
i. With respect to SOWs for Graphic Facilitation Services, Graphic Recording Services and Workshop Services terminated within fourteen (14) days prior to the start of the event at which such Services are to be performed, Client shall be obligated to pay one hundred percent (100%) of the Project Fee, plus reimbursable expenses, unless within ten (10) days of the cancellation date a new date can be mutually agreed upon, which is within ninety (90) days of the original event date. If such a replacement date cannot be agreed upon within the ten (10) day period, then the Project Fee and reimbursable expenses are due within thirty (30) days after expiration of the ten (10) day period.
ii. With respect to SOWs for Graphic Facilitation Services, Graphic Recording Services and Workshop Services terminated more than fourteen (14) days prior to the start of the event at which such Services are to be performed, Client shall be obligated to pay fifty percent (50%) of the Project Fee, plus reimbursable expenses. The Project Fee and reimbursable expenses are due within thirty (30) days after the Client communicates the cancellation to LCC.
Regardless of whether Client terminates an SOW for Cause or without Cause, Client shall pay LCC for all Services performed up to the time of Client’s termination, and for all reimbursable expenses, within thirty (30) days after the date of an invoice submitted by LCC to Client for payment. For Projects subject to hourly rate billing, the amount due will be reflected by the number of hours of Service performed by LCC. For Projects subject to a fixed fee, the amount due will be the Project Fee multiplied by the percentage of the Project which has been completed at the time of termination, but in no case less than the amount paid by the Client prior to the termination.
6. Relationship of the Parties. LCC enters into each Agreement as, and shall continue to be, an independent contractor with respect to the Client. Under no circumstances shall LCC or its Personnel look to Client as their employer, or as a partner or agent. Neither LCC nor its Personnel are entitled to any benefits accorded to Company’s employees, including but not limited to worker’s compensation, disability insurance, vacation or sick pay, or retirement or health benefits. LCC is responsible for providing, at LCC’s expense, disability insurance, worker’s compensation and all other insurance as well as licenses and permits usual, reasonable, or necessary for performing the Services.
7. Project Managers and Status Reports. For each Project, Client will designate a suitably qualified individual on whom LCC and its Personnel may rely for assigning, scheduling and supervising Client’s Personnel. During a Project, LCC will provide Client’s project manager with status reports (at intervals determined by Client). Status reports may contain the following: (i) a summary of the current status of the Project (including specific progress made since the immediately preceding status report); (ii) a summary of the status of, or progress made on, all problems identified in previous status reports (and not previously reported as corrected); (iii) a summary of any problems identified since the preceding status report and any recommended remedial action; and, (iv) the amount of any anticipated delay in the completion of any milestone beyond the applicable date specified in a SOW, the cause of such delay and any recommended remedial action.
8. Mutual Non-Disclosure. It is anticipated that each party may be a “Disclosing Party”, and each Party may be a “Receiving Party” during the term of the Agreement, and it is the desire of each Party that they be assured that if Confidential Information is shared with the other Party, that the Receiving Party will take appropriate steps to safeguard the information from disclosure.
a. Confidential Information. The term “Confidential Information” includes, without limitation: (a) a Disclosing Party’s technical and nontechnical information related to that party’s business and current, future and proposed products and services, including for example, the Disclosing Party’s information concerning research, development, design details and specifications, financial statements or other information, procurement requirements, engineering and manufacturing information, customer information or lists (including current, prospective and former customers), business forecasts, sales information and marketing plans, business models, business plans, executive summaries, flow charts or other manifestations of processes, information on distribution chains, development plans, analyses, compilations, data, studies, guidelines, proprietary and trade secrets, its Intellectual Property; (b) any other information or document provided to a Receiving Party that bears a “confidential”, “proprietary”, “secret”, or similar legend; and (c) discussions relating to Confidential Information whether those discussions occur prior to, concurrent with, or following disclosure of the information. Confidential Information also includes information the Receiving Party knew, or should have reasonably known, under the circumstances, was confidential and had been communicated to it in confidence. Confidential Information includes not only the substance of such information but the nature and existence of the parties’ discussions arising from the subject matter of the Confidential Information.
b. Receiving Party. Receiving Party refers to a Party receiving Confidential Information from a Disclosing Party, and all Receiving Party’s affiliated parties and organizations, including without limitation, Receiving Party’s or such organization’s directors, managers, shareholders, members, officers, partners, employees and contractors, subsidiaries or parents, agents, financial advisors, attorneys, accountants, and consultants (herein referred to as “Related Parties”).
c. Handling of Confidential Information. The Receiving Party agrees to share Disclosing Party’s Confidential Information only with those Related Parties whose names have been divulged to Disclosing Party in writing, and with respect to whose receipt Disclosing Party has consented to in writing, and to take reasonable steps to ensure no unauthorized party receives access to such Confidential Information. Only Related Parties who have been advised of the confidential nature of such Confidential Information, and the terms of this MOE, and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information, may have access to Confidential Information. Receiving Party agrees that at all times and notwithstanding any termination or expiration of this Agreement or an SOW it will hold in strict confidence and not disclose to any third party, and will use its good faith efforts to prevent any Related Parties from disclosing, Confidential Information of a Disclosing Party, except as approved in writing by the Disclosing Party, and will use the Confidential Information for no purpose other than as expressly authorized within the context of the Parties’ Agreement. A Receiving Party shall treat all of Disclosing Party’s Confidential Information with the same degree of care as the Receiving Party accords to Receiving Party’s own proprietary and Confidential Information, but not less than reasonable care. The Receiving Party will immediately notify the Disclosing Party upon discovery of unauthorized disclosure or use of the Disclosing Party’s Confidential Information and will cooperate with the Disclosing Party to regain its Confidential Information, to the extent reasonably practicable.
d. Exceptions to Confidential Information. The Receiving Party agrees to treat as and hold and keep confidential any and all Confidential Information, in whole or in part, received by Receiving Party or its Related Parties in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions herein set forth, unless (a) Receiving Party is already in possession of the Confidential Information, in whole or in part, provided that such information is not known by a Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to Disclosing Party or another party, or (b) is or becomes generally available to the public other than as a result of an non-permitted disclosure by the Receiving Party or its Related Parties, or (c) Receiving Party is legally compelled to disclose the Confidential Information by oral questions, interrogations, requests for information or documents, subpoena, civil investigative demand or similar process, and Disclosing Party does not seek a protective order or other appropriate remedy after receiving notice from Receiving Party of such incidents and Receiving Party shall exercise reasonable efforts to assist Disclosing Party in obtaining such order or remedy.
9. Proprietary Rights.
a. Work Product. All Work Product shall be the sole and exclusive property of LCC.
b. License from LCC to Client. LCC grants to Client an exclusive, royalty-free, worldwide license to use the Work Product for so long as Client is not in breach of the Agreement. Work Product may not be altered or modified in any manner, nor may any derivative works be produced by Client, without the prior written consent of LCC. Work Product resulting from the performance of Story Mapping Services, Graphic Facilitation Services, and Graphic Recording Services may only be used or displayed for a non-commercial purpose. Work Product resulting from the performance of Sketch Animation Video Production Services may be used or displayed for a commercial or other purpose (such as, by way of example, in advertising or other publicity). Client promises that before any Work Product is used in commerce, Client will obtain an opinion from an attorney that the Work Product does not infringe upon the Intellectual Property Rights of any third party.
c. License from Client to LCC. Client grants to LCC a nonexclusive, royalty-free, worldwide license, to the use of Client’s logos, service marks, trade names or trademarks, in the presentation and display of any Work Product, including but not limited to use of Client’s identity and display of the Work Product in LCC’s portfolio, whether presented on LCC’s website, in printed materials of presentations, or otherwise.
d. Derivative Works. LCC will retain ownership of all derivative works of its LCC Materials and of its Licensed Software; provided however that Client is hereby granted by LCC a license to use, execute, distribute, reproduce, display, and perform, any Work Product/Deliverables which are or contain any derivative works of LCC Materials or of Licensed Software, in conformity with, and subject to the same restrictions and conditions set forth in, the license granted under subsection (b), above.
e. LCC Materials. Client acknowledges that in developing or furnishing a Deliverable (or any other Work Product), or in performing Services, LCC may utilize LCC Materials. Client further acknowledges that LCC may modify or improve the LCC Materials during the course of a Project. Client agrees that all such modifications or improvements shall be included within the meaning of “LCC Materials”, unless otherwise specifically agreed by the Parties. If any LCC Materials are incorporated into a Deliverable or other Work Product, LCC will be conclusively deemed to have granted to Client and its Affiliates a license to use, execute, distribute, reproduce, display, and perform such incorporated LCC Materials, in conformity with, and subject to the same restrictions and conditions set forth in, the license granted under subsection (b), above.
f. Legend. All Work Product/Deliverables shall be conspicuously marked as follows: “© (year) by Lane Change Consulting, LLC. All rights reserved.”
g. Alteration of Rights. Notwithstanding anything to the contrary herein, the Parties may specify alternate or different ownership and/or license rights in any applicable Statement of Work.
10. Hold Harmless; Limitation of Liability.
a. Hold Harmless. Client shall hold harmless LCC, its Personnel, and its managers, members, employees, contractors, agents, and representatives against all liability, demands, claims, costs, losses, damages, recoveries, settlements, and expenses, including without limitation claims based in tort or for personal injury (including interest, penalties, attorney fees, accounting fees, and expert witness fees) (“Losses”) incurred by Client or its Personnel or Affiliates, known or unknown, contingent or otherwise, directly or indirectly arising from or related to the Services and/or Deliverables described in a SOW.
b. Limitation of Liability. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (OR TO ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY) FOR LOST PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, REGARDLESS OF THE FORM OF ACTION AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE TOTAL AMOUNT OF FEES PAID TO LCC UNDER THIS AGREEMENT.THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL NOT APPLY TO DAMAGES, (i) RESULTING FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF A PARTY OR ITS PERSONNEL, OR (ii) STEMMING FROM PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE CAUSED BY A PARTY OR ITS PERSONNEL.
c. Liability Capped at SOW Amount. Notwithstanding anything herein to the contrary, no Party’s liability to the other Party, arising from the subject matter of this Agreement, shall exceed the total amount due (and paid) under the particular SOW from which the liability arises.
11. Mediation & Arbitration.
a. General. LCC and Client agree to meet and confer in good faith to attempt to resolve any dispute arising out of the Agreement. Any disputes which are not resolved by meeting and conferring shall be submitted to mediation in San Francisco, California under a mutually agreeable mediator, or, if one cannot be found, under the rules of JAMS Endispute. Costs of mediation shall be borne equally by the parties and each shall bear their own mediation-related attorneys’ fees, if any, unless otherwise agreed. If the dispute cannot be resolved by mediation, the dispute shall be submitted to binding arbitration in San Francisco, California under a mutually agreeable arbitrator, or, if one cannot be found, under the rules of JAMS Endispute. The Arbitrator shall be required to apply Federal Intellectual Property laws and California law. The Arbitrator may not revise or alter the terms of this Agreement. It is expressly agreed that the arbitrator shall be empowered and permitted to grant preliminary and permanent equitable relief in addition to awarding damages. Notwithstanding the foregoing, the parties hereby agree that there shall be only one arbitrator. The Arbitrator’s decision, including any decision about which party shall pay costs and/or attorneys’ fees, shall be final, and may be entered as a judgment in any court of competent jurisdiction. Each shall have the right to be represented by counsel at any mediation or arbitration if either so desires.
b. Attorney Fees. In any litigation, arbitration, mediation or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, or after a default or breach by one party retains an attorney to assist with the enforcement of its rights under the Agreement and collection of amounts due, the aggrieved or prevailing party shall be entitled to recover against the other party its attorney fees, together with any costs and expenses, to enforce the terms of the Agreement, resolve the dispute and to enforce the final judgment.
12. Miscellaneous Provisions.
a. Entire Agreement. The Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties arising from a particular SOW and these Ts&Cs. These Ts&Cs and the SOW shall be read together as one Agreement. If there is any conflict between these Ts&Cs, and an SOW and its Attachments, the SOW and its Attachments shall control.
b. Severability. If a court holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected unless an essential purpose of this Agreement would be defeated by the loss of the illegal, unenforceable, or invalid provision.
c. Applicable Law; Venue. This Agreement shall be construed using federal intellectual property laws and the laws of the State of California, except as they apply to conflicts of law. Any action brought to enforce rights conferred hereunder shall be brought in San Francisco County, California with respect to actions filed in state court or mediation or arbitration, and the courts of the Northern District of California with respect to federal court actions.
d. Force Majeure. A Party will be excused from a delay in performing, or a failure to perform, its obligations under this Agreement to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such Party. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay. However, if an excusable delay continues more than thirty (30) days, the Party not relying on the excusable delay may, at its option, terminate the affected SOWs in whole or in part, upon notice to the other Party. In order to avail itself of the relief provided in this Section for an excusable delay, the Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure.
e. Waivers. No waiver or amendment, including those by custom, usage of trade or course of dealing, of any provision of this Agreement will be effective unless in writing. One party’s waiver of any default or breach under this Agreement by the other shall not constitute a waiver of any subsequent default or breach.
f. Execution. The Agreement is executed by a Client’s execution of an SOW, into which the Attachment and these Ts&Cs are incorporated. SOWs may be signed in counterparts, which together shall constitute one contract. Faxed or electronic signatures (including scanned and e-mailed signatures) shall be construed to be as valid as originals.
g. Headings. The headings in the Agreement are included principally for convenience and shall not by themselves affect the construction or interpretation of any provision in this Agreement, nor affect any of the rights or obligations of the parties to this Agreement.
h. Survival. The provisions of Section 8 (Mutual Non-Disclosures) shall survive the termination of this Agreement by five (5) years.
Terms and Conditions – Revised November 19, 2014