Master Services Agreement
By submitting payment information on our website you are agreeing to our Master Services Agreement as outlined below.
AMG provides internet marketing, custom website design, maintenance and other technology services, and Customer wants to retain AMG to provide such services pursuant to the following terms:
AMG shall provide Customer professional services (the “Services”) only as set forth in the description of plan selected by client online or a separate Statement of Work (“SOW”). The Services may include the preparation and delivery of Google Ad Grants management, Google analytics setup and separate reporting for services rendered or in each SOW.
The parties may amend this Agreement or a SOW only by mutual agreement in writing. If a SOW is inconsistent with this Agreement, the SOW provisions shall govern.
2.0 Fees and Billing
- Fees and Payment for
Customer shall pay AMG all charges set forth in the service tier selected and/or each SOW (collectively, the “Charges”). All estimates of Charges, project costs or time schedules set forth in the service tier and any SOW are deemed to be reasonable estimates, subject to revision. AMG shall use reasonable efforts to complete its work in accordance with the estimated schedules and Charges set out in the online service tier or any SOW. AMG is not liable to Customer for any delays, cost overruns, or liability resulting from factors beyond AMG’s control, including, but not limited to, unforeseen complexities, scope changes, change requests, force majeure events and delays caused by third parties (other than “AMG Third Party Vendors” as defined below).
AMG will automatically charge Customer for Charges on an ongoing, monthly flat fee basis prior to any monthly period in which AMG provides Services to Customer, unless otherwise specified in the SOW. AMG may deduct all amounts agreed upon from Customer’s credit card account on file with AMG or by ACH. AMG will make the deduction each month on or about the day of the monthly subscription anniversary, as set forth upon activating service online with AMG. Any Charges not disputed by Customer in good faith within ten (10)days of AMG’s receipt of payment will be deemed approved by Customer. Customer shall inform AMG immediately of any relevant changes to its credit card account on file or ACH account.
- Remedies for Non-Payment.
Customer’s failure to pay an invoice by the due date is a material breach, which allows AMG to terminate this Agreement immediately without notice or opportunity to cure. In its sole discretion and without prejudice to its right to immediately terminate this Agreement,AMG may pursue any available remedies for non-payment of past-due invoices, including ceasing to provide the Services and entering into good-faith discussions with Customer to resolve the dispute.
- Payment Upon Customer Terminating
If Customer cancels this Agreement or a SOW before AMG completes the Services or installs the Deliverables or products pursuant to the SOW, AMG shall invoice Customer for all Services performed and any products ordered before the cancellation at AMG’s hourly rates of $75 per hour. Customer shall pay the invoice immediately upon receipt.
3.0 Responsibility for Third Party Services, Software and Hardware
- Third Party Services. AMG will solely determine personnel assigned to perform the Services and may engage independent contractors or subcontractors, (“AMG Third Party Vendors”) to perform the If Customer engages non-AMG technicians, or service providers are engaged by Customer to perform services in connection with the Services, (“non- AMG Third Party Vendors”), Customer shall immediately notify AMG. Customer acknowledges and agrees that AMG is not responsible for (i) the software, hardware, products and services of non-AMG Third Party Vendors, (ii) for delays beyond AMG’s control caused by non-AMG Third Party Vendors, and (iii) for any damages, claims, or costs due to any services performed either directly or indirectly by non- AMG Third Party Vendors.If requested by Customer, AMG, at its discretion, will work with Customer to attempt to resolve any problems caused by non-AMG Third Party Vendors. Customer shall pay for this work at AMG’s then-applicable standard rate plus reimbursement of travel expenses, if any.
- Third Party Products. AMG may upgrade and change its products and service offerings to provide Customer with functionally similar products and services from third parties. AMG may revise and/or discontinue products at any time without prior notice to Customer. To the extent that AMG agrees to maintain and support any product of a third party manufacturer or creator, and the third party discontinues the product or support for the product, AMG may terminate maintenance and support for the product.
4.0 Customer Cooperation and Warranties of Customer
- Cooperation. Customer shall reasonably, timely, and in good faith cooperate with and provide information to AMG as reasonably requested by AMG from time to Customer authorizes AMG to access Customer’s materials and Customer’s personnel, facilities, information, data, computers, and computer software for purposes of performing the Services. Customer shall be responsible for making, at its own expense, any changes or additions to Customer’s current systems, software, and hardware that may be required to support operation of the Deliverables.
- Customer Project Customer shall designate one or more of its personnel to act as an authorized project manager(s), who shall organize and participate in all phases of the engagement.
- Customer Warranties. Customer warrants that (i) it has obtained all necessary authorizations, permissions, and licenses to provide AMG, and all technology or information developed or provided by Customer, to be used in connection with the Services (the “Customer Materials”); (ii) the Customer Materials and third-party technology made available to AMG does not infringe or violate any patent, copyright, trade secrets, or trademark rights of any third party or violate any laws; and (iii) that the information Customer furnishes to AMG on which AMG bases the description of the Services and the Charges to be paid by Customer, as set forth in each SOW, is accurate and complete in all material respects.
5.0 Warranties of AMG.
- AMG Warranties. AMG warrants that: (i) its personnel shall perform the Services in a good and workmanlike manner consistent with generally prevailing industry standards for comparable services; (ii) any Deliverables will operate in substantial conformance with the specifications set forth in the applicable SOW or in mutually-agreed-upon modifications reflected in AMG’s project management system; (iii) it has obtained all necessary authorizations, permissions, and licenses to provide Customer all technology, information, content, or graphics developed or provided by AMG in connection with the Services (“AMG-Provided Materials”); and (iv) any AMG-Provided Materials and third-party technology made available by AMG will not infringe or violate any patent, copyright, trade secrets or trademark rights of any third party or violate any laws.
- All warranty claims by Customer pursuant to this Section made more than thirty (30) days after delivery of the relevant Services and/or Deliverables will be deemed waived by Customer. The warranties in § 5.1 are solely for the benefit of Customer, and Customer has no authority to extend the warranties to any third party. All warranties will be null and void upon any of the following events: (1) if the materials or software delivered by AMG in the performance of the Services are: (a) altered, modified or repaired by persons other than AMG or persons approved by AMG, including, without limitation, the installation of any attachments, features or devices not supplied or approved by AMG; (b) misused, abused or not operated in accordance with specifications of AMG or the manufacturers of the materials by persons other than AMG or persons approved by AMG; or (c) subjected to improper site preparation or maintenance by persons other than AMG or persons approved by AMG; (2) Customer’s failure to install and maintain the versions of all operating systems required to run any necessary software; or (3) Customer’s failure to pay any and all amounts due hereunder or other material default of any provision of this Agreement. AMG shall not be responsible for any malfunction, nonperformance or degradation of performance of the materials utilized by AMG in the performance of the Services caused by, or resulting directly or indirectly from (i) installation of such materials by Customer, (ii) any alteration, modification or repair of such materials that was not made by AMG or persons approved by AMG, or (iii) any causes external to such materials, including, but not limited to, power failures or surges.
- WARRANTY DISCLAIMER. THE WARRANTY SET FORTH IN SECTION 1 IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY AMG UNDER THIS AGREEMENT. EXCEPT FOR THE WARRANTY MADE BY AMG IN SECTION 5.1, AMG DISCLAIMS, AND CUSTOMER WAIVES, ALL OTHER WARRANTIES, GUARANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE.
- THIRD PARTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 5.1, AMG MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY TECHNOLOGY, CONTENT OR PRODUCT PROVIDED OR MADE AVAILABLE BY AMG OR CUSTOMER IN CONNECTION WITH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, EQUIPMENT, HARDWARE AND SOFTWARE OBTAINED FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD PARTY ITEMS”). AMG EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS. THE CUSTOMER’S SOLE WARRANTY IS THE THIRD PARTY’S WARRANTY, IF SUCH WARRANTY EXISTS.
6.0 LIMITATIONS OF LIABILITY.
- NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS INFORMATION OR DATA. AMG WILL NOT BE LIABLE FOR DIRECT DAMAGES CAUSED BY LATE DELIVERY, OR ANY OTHER CAUSE EXCEPT AS EXPRESSLY PROVIDED HEREIN.
- MAXIMUM AMG’S TOTAL LIABILITY TO CUSTOMER WITH RESPECT TO ANY SERVICES, PRODUCTS OR DELIVERABLES WILL NOT EXCEED THE TOTAL AMOUNT OF THE CHARGES PAID BY CUSTOMER FOR A PERIOD OF ONE YEAR BEFORE THE EVENT GIVING RISE TO LIABILITY, EVEN IF ANY TERM OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, AMG SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY SUSPENSION OR TERMINATION OF CUSTOMERS GOOGLE AD GRANTS ACCOUNT DUE TO THE FAILURE TO MAINTAIN THE PROGRAM’S REQUIRED CLICK-THROUGH RATE OR OTHER PROGRAM RULES. IN THE EVENT OF A SUSPENSION OR CANCELATION OF CUSTOMERS GOOGLE AD GRANTS, CUSTOMER SHALL NOT BE ENTITLED TO A REFUND OF THE CHARGES NOR SHALL AMG BE LIABLE FOR THE VALUE OF CUSTOMERS LOSS OF IN-KIND ADVERTISING.
- Limitations Period. Neither party may bring any claim or action arising out of or related to this Agreement, including any claim of fraud or misrepresentation, more than one year after the claim accrues. THE PARTIES AGREE THAT ANY CLAIM NOT PRESENTED WITHIN ONE (1) YEAR OF THE ACCRUAL OF THE CLAIM BY THE PARTIES SHALL BE DEEMED TO BE WAIVED.
- Substitutes. Customer’s acceptance of any refunds or substitute software, services or products for a cure of a dispute under this Agreement waives all claims related to the non-performing software, services or products involved in that
- No Professional Except as provided in Section 5.1, Customer assumes sole responsibility and liability for the accuracy and interpretation of all output and for the results generated by any software, products or Deliverables and operations procedures.
- Force Majeure. Neither party is liable for failing to fulfill its obligations due to acts of God, civil or military authority, war, riots, strikes, fire, epidemic, or other causes beyond its reasonable control, except for Customer’s obligation to make However, Customer’s payments may be delayed up to thirty (30) days for reasons described in this Section.
Customer shall protect, defend and indemnify AMG and its officers, directors, employees, and agents, licensors and suppliers and hold them harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorney’s fees and all related costs and expenses) incurred by AMG as a result of any claim, judgment, or adjudication against AMG related to or arising from or in connection with a claim that (a) AMG’s use of Customer Materials or Customer Data, as permitted under this Agreement, infringes upon any U.S. patent issued as of the Effective Date or any copyright or trade secret rights of a third party; (b) any use by Customer of any materials or information developed by AMG for Customer, excluding, however, any use by Customer that would give rise to an indemnification obligation by AMG as set forth below; or (c) any license, sale or distribution of any Customer product or service.
If the Services or the Deliverables provided by AMG are alleged to infringe a third party’s trademark, patent, copyright or other intellectual property right, or AMG determines that the Services or any of the Deliverables may infringe such rights, or Customer is enjoined from using any of such Deliverables, or any part of same, then AMG, at AMG’s expense, shall (1) replace such infringing Services or Deliverables with non-infringing, equivalent and conforming Services or Deliverables,
(2) modify such infringing Services or Deliverables, so that they become non-infringing but continue to provide the same type and quality of performance and services, or (3) procure the right for Customer to continue using such infringing Services or Deliverables. The obligations imposed upon AMG in this Section shall not apply to (a) any materials manufactured or created by any third party,
- any materials manufactured or created by AMG to Customer’s design or specifications, or
- content submitted to Customer for pre-approval that is subsequently approved by This Section shall not apply to the extent the claim of infringement is caused by Customer’s misuse, abuse or modification of such materials, Customer’s failure to use corrections or enhancements made available by AMG, or Customer’s use of such materials in combination with any product not supplied or approved by AMG. This Section states the entire liability of Parties and the exclusive remedy of Parties for infringements by the Services or Deliverables utilized by AMG in the performance of the Services.
8.0 Term and Termination.
- Term. This Agreement commences on the Effective Date and continues in full force until Services are completed or either party terminates this Agreement pursuant to Sections 8.2 and 8.3, whichever is earlier (the “Term”). This Agreement, collectively with the related SOW(s), shall terminate upon expiration of the Term.
- Termination for Either party may terminate this Agreement without cause by delivering a written notice of termination to the other party at least 30 days before the desired effective date of the termination.
- Termination with Upon material breach or default under this Agreement by any party (the “breaching party”), if the other party (“non- breaching party”) gives written, detailed notice of the breach or default and breaching party does not cure it within fifteen (15) days after delivery of the notice, then, without limitation of any other available remedy, the non-breaching party may terminate this Agreement by delivery of a written notice of termination at any time after that before the breach or default has been cured. The termination shall be effective as of the date of the subsequent notice. Any failure by Customer to pay fees or other charges when due shall constitute a “material breach” of this Agreement. Either party is in material default of this Agreement if it becomes insolvent; it makes an assignment for the benefit of its creditors; a receiver is appointed or a petition in Bankruptcy is filed with respect to the party and is not dismissed within thirty (30) calendar days.
- Duties upon Termination; Upon termination of this Agreement, Customer shall pay AMG for all unpaid fees and other accrued charges within 30 days after receipt of the applicable AMG invoice. Termination of this Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination, and the applicable provisions of this Agreement shall continue to apply to such claim until it is resolved.
- Scope of Obligation. In connection with the Services performed under this Agreement, the parties may have access to the other party’s Confidential Information. “Confidential Information” means non-public information that the disclosing party expressly designates as being confidential or which under the circumstances surrounding disclosure ought to be treated as confidential and/or information received from others that the disclosing party is otherwise obligated to treat as confidential.
- Covenant Not to During and after the Term, each party shall not use, commercialize or disclose Confidential Information to any person or entity, except to its own employees or Third Party Vendors, as defined in Section 3.1, as having a “need to know,” and to such other recipients as the other party may approve in writing, unless otherwise required under a formal order of a court of competent jurisdiction. A party’s Confidential Information may be used by the other party only to fulfill its obligations under this Agreement. Upon request from the other party, a party will return to the other party within ten (10) days all Confidential Information in its possession.
- Exceptions. Confidential Information does not include any information that: (a) is already known to the receiving party or its affiliates, free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the receiving party or its affiliates; (c) is received by the receiving party from a third party without any restriction on confidentiality; (d) is independently developed by the receiving party or its affiliates; (e) is disclosed to third parties by the disclosing party without any obligation of confidentiality; or (f) is approved for release by prior written authorization of the disclosing party.
- Third Party Vendors. AMG is not and shall not be responsible for the disclosure of Confidential Information caused by non-AMG Third Party Vendors, as defined in Section 3.1.
10.0 Ownership of Work Product
- General. All work produced by AMG, its employees, or its subcontractors in connection with the Services and that has been paid in full for by Customer (the “Work Product”), is work made for hire made in the course of Services rendered under this Agreement, and shall be the exclusive property of Customer or its
- AMG Property. Notwithstanding anything to the contrary in this Agreement or a SOW, AMG will retain all rights, title and interest to all software, software development tools, know-how, methodologies, processes, technologies or algorithms used in providing the Services that are based on AMG’s trade secrets or proprietary information or are otherwise owned or licensed by AMG (“AMG Property”). No licenses will be deemed to have been granted by either party to any of its patents, trade secrets, trademarks or copyrights except as otherwise expressly provided in this Agreement. To the extent AMG Property is incorporated in any Work Product, AMG grants Customer an irrevocable, nonexclusive, worldwide, fully paid up, perpetual license, with the right to sublicense, to AMG’s proprietary rights in the AMG Property required for use with the Work Product.
- Customer Data. Customer shall own all rights, title and interests to the Customer “Customer Data” means the data and information specifically pertaining to Customer, its affiliates, and their respective employees and agents that Customer may input or upload into any software or database in the course of this Agreement.
11.0 Independent Contractor.
The relationship of the parties is that of customer and independent contractor, and not that of employer-employee, and this Agreement does not establish a partnership, joint venture, or other association between the parties.
Neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement to an entity who acquires substantially all the stock or assets of such party; provided that consent will be required if the non-assigning party reasonably determines that the assignee will not have sufficient capital or assets to perform its obligations under this Agreement.
13.0 Use of Name and Publicity.
AMG may use all Services it provides under this Agreement to advertise its services.
14.0 Governing Law.
This Agreement and each SOW is governed by and construed under Ohio law. The exclusive venue for any action arising out of or otherwise relating to this Agreement is the U.S. District Court for the Northern District of Ohio, unless the proceeding involves a matter in which the federal court does not have jurisdiction, in which case the venue is Cuyahoga County Court of Common Pleas, and Customer is subject to personal jurisdiction in those courts. The parties waive their right to a jury trial for any action arising out of or relating to this Agreement. In any action arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees, both in the trial court and on appeal.
15.0 Entire Agreement and Modifications.
This Agreement and any related SOWs are the parties’ complete and exclusive agreement, and supersede all prior proposals, understandings, and agreements, oral or written, between the parties relating to this Agreement’s subject matter, including without limitation, the terms of any Customer request for proposal or the standard printed terms on any Customer purchase order. No modification, amendment, supplement to or waiver of this Agreement is binding on the parties unless made in writing and signed by both parties. No modification, amendment, supplement to or waiver of a SOW shall be binding on the parties unless it is made in accordance with § 1.0.
16.0 Severability and Interpretation.
If any part of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions will be unimpaired. This Agreement shall be construed as if drafted jointly by the parties, and accordingly, no rule of construction should be utilized to favor one party over the other.
17.0 Execution of Agreement.
This Agreement may be executed in one or more counterparts, each of which shall be considered an original, but all of which together constitute the same instrument.
A thirty (30) day written cancellation notice is required to stop any agreed upon services stated in this agreement (reference 8.2).