Terms and Conditions
MASTER SERVICE AGREEMENT
This Master Service Agreement (the “Agreement”) is entered into effective as of _________________ (the “Effective Date”), by and between Open Flow, Inc., a Delaware corporation (“Open Flow”), and _________________ (the “Client”), and includes the terms and conditions of any applicable statements of work (if any), and any other documents that are incorporated herein by reference, as may be amended by the Parties in accordance with the requirements herein. Each are sometimes referred to hereinafter, individually as a “Party,” and collectively, as the “Parties”.
WHEREAS, Client desires to engage Open Flow to provide the services, as more fully described on the Statement of Work (“SOW”), attached as Exhibit A, and on the applicable Program Description(s) (“Program Description”), attached as Exhibit B to this Agreement, both of which are incorporated herein by reference (together with any additional SOWs, change orders, or other documentation relating thereto, the “Services”); and
WHEREAS, Open Flow agrees to perform the Services under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1.
THE SERVICES
1.1
The Services. Open Flow agrees to provide Client with the Services. Client agrees that Open Flow is responsible only for providing the Services, and Open Flow is not responsible for providing any services or performing any tasks not specifically set forth in an SOW.
1.2
Alteration of Services. The Parties may modify the Services set forth in the SOW to include or delete Services, provided that any change to the Services is agreed to in writing by the Parties. Open Flow shall have no obligation to perform Services in connection with any change to the scope of Services until the Parties have agreed upon the effect of such change in the applicable fees. Unless otherwise agreed to in writing by the Parties, any change to the Services shall become effective on the start of the next full billing cycle.
1.3
Acceptance of Services. Client is deemed to accept any Services provided by Open Flow, unless Client provides written notice to Open Flow within five (5) business days of delivery that such Services are not accepted. Failure to timely object shall constitute final acceptance of all Services.
1.4
Mandatory Execution of Agreement and SOW. Notwithstanding anything to the contrary in this Agreement, Open Flow shall have no obligation to commence or continue any Services unless and until this Agreement and the applicable SOW have been fully executed by Client. If Client remits any payment, deposit, or retainer to Open Flow but fails to execute this Agreement and/or the applicable SOW within fifteen (15) calendar days of such payment, Client shall be deemed to have accepted and agreed to be bound by all terms and conditions of this Agreement and such SOW as if fully executed. Open Flow may, in its sole discretion, suspend Services until all required signatures are obtained, without liability to Client.
1.5
Cancellations and No-Shows. Client must provide Open Flow with at least twenty-four (24) hours’ written notice to cancel or reschedule any scheduled session, meeting, workshop, or Services appointment (each, a “Session”). Any Session cancelled or rescheduled with less than twenty-four) hours’ notice, or any failure to attend a scheduled Session (“no-show”), shall be fully billable at Open Flow’s then-current hourly rates, as if the Session had occurred. Client acknowledges that Open Flow reserves time and resources in advance and agrees that Client remains responsible for all time reserved, prepared, or allocated for such Session, regardless of attendance. Repeated late cancellations or no-shows shall constitute a material breach of this Agreement and may result in suspension or termination of Services.
1.6
Client Cooperation. Client shall timely provide all access, information, content, approvals, feedback, and decisions reasonably requested by Open Flow to perform the Services. Client acknowledges that Open Flow’s performance is dependent upon Client’s cooperation, and that any delays, failures, or deficiencies caused by Client shall not constitute a breach by Open Flow, shall not excuse payment obligations, and shall extend project timelines as reasonably necessary. Open Flow shall not be responsible for delays or failures resulting from Client’s failure to cooperate.
2.
TERM AND TERMINATION
2.1
Term. This Agreement shall be effective upon the Effective Date and shall remain in effect for a minimum of twelve (12) months from the date of this Agreement, and can be automatically renewed on a month-to-month basis for additional one (1) month periods unless either party notifies the other party in writing at least thirty (30) calendar days’ notice of its intention to terminate the Agreement (the “Term”).
2.2
Termination. Notwithstanding the foregoing, this Agreement may be terminated by either party upon thirty (30) calendar days’ written notice to the other party. In the event of a material failure by either party to perform its obligations under this Agreement, the non-breaching party may terminate this Agreement immediately upon written notice to the breaching party.
2.3
Termination of Service. Upon termination of this Agreement for any reason, all access to the Services shall terminate.
3.
COMPENSATION; PAYMENT TERMS
3.1
Fees. In consideration for the Services to be rendered by Open Flow, Client shall pay to Open Flow the total fees outlined in the applicable SOW (the “Fees”). Unless expressly stated otherwise in a signed SOW, all Services shall be provided on a time-and-materials basis. Client shall be responsible for payment of all hours actually worked by Open Flow at the rates specified in the applicable SOW, plus any approved out-of-pocket expenses incurred in connection with the Services, regardless of Client’s satisfaction with the Services, deliverables, or results—and dissatisfaction shall not excuse, delay, or reduce payment.
Fees are earned as Services are performed and are non-refundable once time is incurred. Client acknowledges that Open Flow does not guarantee business outcomes, revenue, leads, performance metrics, or any specific result. Client further acknowledges that any estimates of hours or Fees are non-binding projections only, and any Client-requested changes to scope that increase time or cost shall require written confirmation from Open Flow, with Client agreeing to pay for all additional time incurred as a result of such changes. Open Flow shall have no obligation to commence or continue Services unless Client’s account is current and valid payment authorization remains on file at all times.
3.2
Open Flow shall invoice Client every month for Fees (the “Invoices”). Invoices will be sent monthly, reflecting the actual hours worked during the preceding billing cycle. Payments are due immediately upon receipt of each invoice. Failure to pay invoices in a timely manner may result in the suspension of Services until the outstanding balance is resolved. Fees will be billed monthly to the Client payment method listed in the SOW or applicable change order at the rate for the monthly services set forth on the SOW or applicable change order plus the actual out-of-pocket expenses incurred on Client’s behalf during the previous month or approved by the Client for out-of-pocket expenses expected to be incurred in the coming month. Charges for the Fees will be processed on or about the same day each month during the Term. Failure to timely pay undisputed invoices may cause interruptions of Services. Any undisputed invoice not paid within ten (10) calendar days of the due date shall accrue interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Client shall be responsible for all reasonable costs of collection, including attorneys’ fees. If Client fails to make any payment within ten (10) calendar days after the due date, Open Flow reserves the right to immediately suspend Services and/or terminate this Agreement or any applicable SOW, in its sole discretion and without liability to Client. In the event of any dispute with regard to a portion of an Invoice, the undisputed portion shall be paid as provided herein.
3.3
Client hereby irrevocably authorizes Open Flow to initiate automatic ACH debits from Client’s designated bank account for all Fees due under this Agreement, including without limitation any required down payments, deposits, retainers, monthly Fees, pay-downs, past-due balances, interest, and collection costs. Such authorization shall remain in full force and effect until all amounts owed to Open Flow are paid in full, notwithstanding any termination, suspension, or expiration of this Agreement. Client acknowledges that Open Flow is not required to obtain separate authorization for each charge and that failure to maintain sufficient funds or valid banking information constitutes a material breach of this Agreement.
3.4
Client agrees not to initiate any chargeback, payment reversal, or disputed transaction with its bank or card issuer with respect to any Fees. Any chargeback shall constitute a material breach of this Agreement. Client shall be responsible for and shall promptly reimburse Open Flow for all chargeback fees, penalties, administrative costs, and collection expenses incurred as a result of such chargeback. Open Flow may immediately suspend Services and/or terminate this Agreement upon any chargeback.
3.5
If Client becomes insolvent, files or has filed against it any bankruptcy or insolvency proceeding, makes an assignment for the benefit of creditors, or ceases business operations, all outstanding amounts owed to Open Flow shall become immediately due and payable, without further notice or demand. Open Flow may immediately suspend or terminate Services upon the occurrence of any such event.
3.6
No Waiver; Late Invoicing. No failure or delay by Open Flow in invoicing, demanding payment, enforcing any payment deadline, or exercising any right or remedy under this Agreement shall constitute or be deemed a waiver of Open Flow’s right to receive full payment for Services performed. Client acknowledges and agrees that the timing of invoicing, including any delayed or consolidated invoice, does not relieve Client of its obligation to pay for all Services rendered. All Fees for Services performed are earned as work is completed, regardless of whether an invoice has been issued at the time of performance. Under no circumstances shall Open Flow be deemed to have waived its right to collect payment for Services performed, whether or not an invoice is issued, disputed, delayed, or unpaid, and regardless of the outcome of any project, engagement, dispute, suspension, or termination of Services.
3.7
Payment Obligation Survives Outcome. Client’s obligation to pay all Fees incurred for Services performed shall survive expiration or termination of this Agreement for any reason and shall not be contingent upon Client’s satisfaction, business results, project outcome, or completion of any particular milestone or deliverable. Any dispute, suspension, or termination of Services shall not waive or reduce Open Flow’s right to full payment for work performed prior to such event.
3.8
No Setoff; Discretionary Adjustments. Client shall not withhold, offset, deduct, or reduce any Fees for any reason. Any credits, adjustments, reductions, or fee accommodations, if any, shall be offered solely at Open Flow’s discretion and must be expressly approved in writing by Open Flow. No implied approval, course of dealing, or past accommodation shall create any obligation to offer future deductions or credits.
3.9
Collection Costs; Legal Fees. Client shall reimburse Open Flow for all costs incurred in connection with the collection of any past-due amounts, including without limitation reasonable attorneys’ fees, court costs, arbitration fees, expert fees, collection agency fees, administrative expenses, and any other costs incurred to enforce Open Flow’s payment rights. Such amounts shall be immediately due and payable upon demand and may be charged via ACH in accordance with Client’s payment authorization.
4.
CONFIDENTIALITY; PRIVACY
4.1
Confidentiality. Subject to the other terms and conditions of this Agreement, as a result of this Agreement and the ongoing relationship of the Parties, each of the Parties may have access to or acquire knowledge of confidential and proprietary information concerning the other and the other’s business (the “Confidential Information”), and each agrees to treat the Confidential Information as confidential. All Confidential Information shall remain solely the property of the disclosing party, and the recipient shall maintain and protect the confidentiality of such Confidential Information with the same degree of care used to protect its own confidential information, but in any event, no less than a reasonable degree of care. Each of the Parties agrees not to utilize another’s Confidential Information for any purpose other than the performance of this Agreement. Each of the Parties understands, acknowledges, and agrees that a breach of this Section would cause the non-breaching party irreparable damage, for which the award of damages would be inadequate compensation. Accordingly, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive.
4.2
Privacy. The names, addresses, and other information generated by Client’s use of the Services, together with information regarding the manner in which Client uses the Services, will not be disclosed by Open Flow except as necessary to carry out the terms and conditions of this Agreement, or (a) to comply with law or comply with legal process served upon Open Flow, (b) to protect and defend Open Flow’s rights or property or those of Open Flow’s customers, clients, vendors, and third party providers, (c) to protect the personal safety of Open Flow’s users or the public, or (d) if in Open Flow’s sole discretion, Open Flow believes that it is necessary to disclose any such information in order to avoid exposure to civil or criminal liability or public ridicule, or to avoid damage to Open Flow’s business or reputation.
5.
TITLE
5.1
Title to any intellectual property, software, or equipment now owned by Open Flow and/or its third party providers and used in providing the Services remains exclusively owned by Open Flow and/or its third party providers and is not transferred to Client.
5.2
All work products created by Open Flow in performance of the Services as a result of this Agreement shall be deemed a “work made for hire” and shall be the exclusive property of Client. Exceptions to this include all templates and standard operating procedures Open Flow uses to produce the client's final output products.
6.
WARRANTIES, INDEMNIFICATION, NON-SOLICITATION
6.1
Limited Warranty. Except as otherwise set forth in this Agreement, Open Flow warrants that it shall provide the Services in a professional manner. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 6.1, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
6.2
Limitation of Liability. IN NO EVENT SHALL OPEN FLOW BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICES, EVEN IF CLIENT HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. Client’s exclusive remedy for breach by Open Flow of its limited warranty shall be limited to discontinuation of the Services. Open Flow provides labor-based services and does not offer refunds for time already spent or for partially completed work. All Fees are earned as Services are performed. No refunds shall be issued under any circumstances for Services already performed, regardless of dissatisfaction, alleged deficiencies, or whether the contracted scope of Services has been fully completed. Client agrees that Open Flow’s total liability for any claim, regardless of the form of action, shall not exceed the aggregate dollar amount paid by Client to Open Flow in the one (1) month immediately prior to the claimed injury or damage.
6.3
Client Indemnification. Client will defend, indemnify, and hold Open Flow, its affiliates, employees, officers, agents, licensors and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees incurred as a result of Client’s violation of its obligations under this Agreement, or the negligent or willful acts of Client, or violation of any third party intellectual property or privacy rights.
6.4
Open Flow Indemnification. Open Flow will defend, indemnify, and hold Client, its affiliates, employees, officers, agents, licensors and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees incurred as a result of Open Flow’s violation of its obligations under this Agreement, or the negligent or willful acts of Open Flow, its employees, or agents, or violation of any third party intellectual property or privacy rights.
6.5
Non-Solicitation.
During the Term of this Agreement and for a period of two (2) years thereafter, the Parties will not directly or indirectly solicit, induce, attempt to induce, or endeavor to entice away any employee of the other party, for their own account or for the account of a third party.
6.6
Responsibility for Advertisements. Client represents and warrants to Open Flow that it is fully authorized to deliver and authorizes Open Flow to deliver on its partners’ behalf, content through advertisements (including, without limitation, all content such as text, graphics, URLs, and sites to which URLs are linked), and that all content complies with all applicable laws and regulations. If an agency is entering into this Agreement on behalf of Client, the agency agrees to the foregoing representations and further represents and warrants that it is the authorized agent of Client, and Client is not, as of the date of this Agreement, in material breach or default of any agreement with respect to any amount owed to the agency. It is the responsibility of Client to inform Open Flow of removed or relocated web content that may adversely affect the advertisements’ ability to deliver appropriate content to visitors. Open Flow will not be held liable for any clicks delivered to removed or relocated web content, such as those resulting in an HTTP 404 error response code.
7.
GENERAL PROVISIONS
7.1
Notice. Any notice required or permitted to be given hereunder shall be in writing and will be effective (i) three (3) business days after deposit in the U.S. Mail, certified, return receipt requested, postage prepaid, or (ii) one (1) business day after deposit with a reputable express next day courier providing written receipt of delivery and addressed to the Parties at their respective addresses as first written in this Agreement.
7.2
Independent Contractors. Each Party is an independent contractor, and the Parties shall not have the authority to bind, represent, or commit the other. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, or agency relationship between the Parties.
7.3
Entire Agreement. This Agreement and the attached Exhibit(s) constitute the entire agreement between Open Flow and Client with respect to the subject matter hereof. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both Parties to this Agreement.
7.4
Governing Law; Venue. This Agreement will be governed and construed under the laws of the State of Arizona, without regard to conflict of laws provisions or the United Nations Convention on the International Sale of Goods. The Parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the State of Arizona located in Maricopa County.
7.5
Binding Arbitration; Waiver of Jury Trial. Any dispute, claim, or controversy arising out of or relating to this Agreement, any Statement of Work, the Services, or the relationship of the Parties, including the breach, termination, enforcement, interpretation, or validity thereof, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, with the arbitration conducted before a single neutral arbitrator in Maricopa County, Arizona; this Agreement and the arbitration shall be governed by the Federal Arbitration Act and, to the extent not preempted, the laws of the State of Arizona, and judgment on the arbitration award may be entered in any court of competent jurisdiction; notwithstanding the foregoing, either Party may seek temporary or permanent injunctive or equitable relief in a court located in Maricopa County, Arizona to prevent or remedy actual or threatened breaches of confidentiality, intellectual property rights, payment obligations, or misuse of proprietary information without waiving arbitration; THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
7.6
Prevailing Party. In any action, arbitration, mediation, or other proceeding arising out of or relating to this Agreement, the Services, or the relationship between the Parties, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs, and litigation expenses from the non-prevailing party, in addition to any other relief to which such party may be entitled.
7.7
Waiver/Severability. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
7.8
Force Majeure. Except for the payment of fees by Client, if the performance of any part of this Agreement is prevented, hindered, delayed, or otherwise made impracticable by reason of any cause or event not within the reasonable control of such party and without its fault or negligence, that party shall be excused from such to the extent that it is prevented, hindered, or delayed by such causes.
7.9
Assignment and Transfer. Client may not assign, without the prior written consent of Open Flow, its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part.
7.10
Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding, and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
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