Master Services Agreement (MSA) | Twirling Umbrellas

AGREEMENT

This Master Services Agreement (“Agreement”) is entered into by and between Twirling Umbrellas Ltd., a corporation with an address at 106-460 Doyle Avenue, Kelowna, BC, V1Y 0C2 (“Agency”), and you, the client (“Client”) as of the date the (the “Effective Date”).

1. DEFINITIONS

As used herein and throughout this Agreement:

1.1. Agreement means the entire content of this document together with any appendices and/or attachments hereto and referenced within this document.

1.2. Changes mean any changes that are made to the Scope of Work outlined in the original Project Order.

1.3. Change Order means the written document containing a description of the scope of Changes that are requested or required, and includes an estimate for the additional cost of such changes.

1.4. Client Content means all materials, information, photography, and other content provided by the Client for use in the preparation of and/or incorporation into the Deliverables.

1.5. Confidential Information means the confidential or proprietary technical and business information and materials of the other party, which may include, but is not limited to: business records, names, addresses, customer lists, customer buying habits and preferences, trade secrets, business strategies, marketing plans, marketing forecasts, the Preliminary Works, and other confidential and/or proprietary information that could be used to the detriment of the applicable party.

1.6. Copyrights means the property rights to original creative works, expressed in a tangible medium of expression, as defined under Canadian Copyright Law.

1.7. Deliverables means the services and work product delivered by the Agency to the Client, in the form and media specified in the Project Order.

1.8. Final Deliverables means the final versions of Deliverables provided by the Agency.

1.9. Original Artwork means all content and creations produced or created by the Agency.

1.10. Preliminary Works means all creative content developed by the Agency, including, but not limited to, concepts, sketches, draft copy, wireframes, prototypes, or other preliminary designs and documents which may be shown or delivered to the Client for consideration but do not form part of the Final Works.

1.11. Final Works means all creative content developed by the Agency, or commissioned by the Agency, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any visual elements, graphic design, illustration, photography, animation, audio/visual works, typographic treatments and text, modifications to the Client Content, and the Agency’s selection, arrangement, and coordination of such elements.

1.12. Agency Tools means all design tools developed and/or utilized by the Agency in performing the services, including, without limitation, pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.13. Project means the scope and purpose of the Client’s identified usage of the work product as described in a Project Order.

1.14. Project Order means an accepted offer (quote, proposal, or change order) for services and/or work product to be provided to the Client by the Agency.

1.15. Services means all services and the resulting work product to be provided to the Client by the Agency as described and otherwise further defined in the Project Order, including any Changes.

1.16. Scope of Work means a description of the total services and work product to be provided by the Agency, to the Client, containing any relevant timelines, milestones, and/or Deliverables.

1.17. Third-Party Materials means proprietary third-party materials such as plugins, extensions, stock photography, and other materials that are not produced by the Agency, but are incorporated into the Final Deliverables.

1.18. Trademarks means trade names, words, colours, symbols, designs, logos, or other visuals used to designate the origin or source of the goods or services of the Client, as defined under Canadian Law.

1.19. Working Files means all underlying work product and digital files utilized by the Agency to create the Preliminary Works or Final Works other than the format used in the Final Deliverables.

2. FEES AND CHARGES

2.1. Fee(s). In consideration of the Services to be performed by the Agency, the Client shall pay to the Agency, fees in the amounts and according to the schedule set forth in the Project Order, plus any applicable taxes (the “Project Fees”).

2.2. Rate(s). Our current hourly rates are as follows:

Services	Rate	Examples Include:
Regular Services	$175	UX/UI and graphic design, copywriting, and development.
Strategy & Branding	$225	Strategic plans, nomenclature, and brand development.
Rush / After Hours	$250	Rush services or requests outside normal business hours.
Data Entry	$85	Manual data entry and processing services.

2.3. Expenses. The pricing shown in the Project Order includes the Agency’s fees and related expenses incurred at the discretion of the Agency.

2.4. Additional Fees. Additional fees including, but are not limited to, additional work and services requested or recommended, equipment rental, photographer’s costs and fees, stock photography, typefaces, artwork licenses, production costs, and/or license fees, may be required to complete the Project and will be invoiced to the Client (the “Additional Fees”).

2.5. Pricing. The pricing provided in all quotes and in any Project Order with a value of less than $5,000, shall be non-binding and total fees shall reflect the total billable time and expenses incurred in providing the services and/or work product. The pricing provided in any Project Orders with a value of $5,000, shall be considered a fixed price for the Scope of Work detailed (unless otherwise specified).

2.6. Terms. Invoices are payable within thirty (30) days of receipt, unless otherwise specified in the Project Order. Interest of 2% per month (26.82% per annum) is applicable on all overdue balances. 2.7. Payments. Payments received will be credited first to late payment charges and next to the unpaid balances. Client shall be responsible for all collection fees necessitated by lateness or default in payment.

2.7. Delivery. The Agency reserves the right to withhold delivery, discontinue work, and/or deactivate other services provided, if accounts are not kept current. All grants of any license to use, or transfer of ownership of any intellectual property rights under this Agreement, are conditioned upon receipt of payment in full, which shall be inclusive of any and all outstanding Additional Fees, taxes, interest, and other charges.

3. CHANGES & REVISIONS

3.1. Changes. The Client shall pay the Additional Fees for Changes recommended to or requested by the Client which are outside the Scope of Work indicated in the Project Order on a time and materials basis, at the rates outlined in the table at Section 2.2 of this Agreement. Such Additional Fees shall be in addition to the regular Project Fees payable under the Project Order, despite any maximum budget, contract price, or final price identified therein. The Agency may extend or modify any delivery schedule or deadlines in the Project Order and any Deliverables as may be required by such Changes.

3.2. Change Order. The Agency will notify the Client in advance of any expected Additional Fees. The Agency will submit a written Change Order which will contain an estimate of the additional charges for the Client’s approval. Work shall not proceed on the Changes until the Client’s approval is received by the Agency.

3.3. Timelines. The Agency will prioritize performance of the Services as may be necessary or as identified in the Project Order, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Project Order.

3.4. Reviews. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either:
a. Approve the Deliverables in writing; or,
b. Provide written feedback sufficient to identify the Client’s requests, concerns, objections, corrections, or ideas to the Agency. The Client shall timely respond to any request by the Agency for written clarification of any request, concern, objection, correction, or new idea.

3.5. Deadlines. The Client acknowledges and agrees that the Agency’s ability to meet deadlines is entirely dependent upon the Client’s prompt performance of its obligations to provide materials, comments, and/or approvals pursuant to the timelines outlined in the Project Order, and that any Changes to the Scope of Work may delay delivery of the Deliverables. Any such delay shall not constitute a breach of any term, condition, or the Agency’s obligations under this Agreement.

3.6. Acceptance. The Client, within ten (10) business days of receipt of each Deliverable or as specified in the Scope of Work, shall notify the Agency, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Project Order, or of any other Changes the Client wishes made to such Deliverable. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice, the Deliverable shall be deemed accepted.

4. CLIENT RESPONSIBILITIES

The Client acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:

Coordination of any decision-making with parties other than the Agency;
Provision of the Client Content in a form suitable for use in the Deliverables without further preparation, unless otherwise expressly provided in the Project Order;
Ensuring that all details, information, and claims contained within the Client Content are accurate, legal, and conform to applicable standards in the Client’s industry;
Ensuring that all details, information, and claims contained within the Final Deliverables are accurate, legal, and conform to applicable standards in the Client’s industry; and,
Final review and approval of the Deliverables.

5. ACCREDITATION

5.1. The Agency retains the right to reproduce, publish and display the Deliverables in the Agency’s portfolios and websites, and in galleries, design periodicals, and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

5.2. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

6. CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain Confidential Information. Each party, its agents and employees, shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Project Order except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third-party without an obligation of confidentiality.

7. INTELLECTUAL PROPERTY

7.1. Rights in the Final Deliverables:

Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees (including Project Fees and Additional Fees), expenses, and costs due, the Agency assigns to the Client all of the Agency’s Copyrights and Trademarks in and to the Final Works, and, if requested, the Agency shall deliver to the Client all Working Files related to the Final Works.
Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of the Client or its respective partners, and the Client or its partners shall be the sole owner of all Trademarks, Copyrights, and other rights in connection therewith.
Third-Party Materials. Intellectual property rights in Third-Party Materials shall be owned by the respective third-parties. The Agency shall obtain a license on behalf of the Client to use the Third- Party Materials and shall provide the Client with copies of such licenses. The Client accepts responsibility for maintaining such licenses.

7.2. Rights Reserved to the Agency:

Preliminary Works. The Agency retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works.
Original Artwork. The Agency retains property ownership in any original artwork not included in the Final Works, including all rights to display or sell such artwork.
Agency Tools. Agency Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by the Agency. The Agency hereby grants to the Client a non-exclusive, non-transferable (other than the right to sublicense such uses to the Client’s publisher, web hosting, or Internet service providers), perpetual, worldwide license to use the Agency Tools solely with the Final Deliverables for the Project. The Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Agency Tools comprising software or technology.

7.3. Injunctive Relief. The Client acknowledges and agrees that without prejudice to any and all other rights of the Agency, in the event of the Client’s violation or attempted violation of any of the covenants in sections 6 and 7 of this agreement, an injunction or any other like remedy shall be the only effective remedy to protect the Agency’s rights and property as set out in such clauses, and that an interim injunction may be granted immediately on the commencement of any suit.

8. RELATIONSHIP OF THE PARTIES

8.1. The Agency shall provide the Services under the general direction of the Client, but the Agency shall determine, in the Agency’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

8.2. Agency Agents. The Agency shall be permitted to engage and/or use other service providers as independent contractors in connection with the Services. Notwithstanding, the Agency shall remain fully responsible for compliance with the various terms and conditions of this Agreement.

8.3. No Solicitation. During the term of this Agreement, and for a period of two (2) years after expiration or termination of this Agreement, the Client agrees not to, for any reason, solicit, recruit, or otherwise hire or take away (or cause to be hired or taken away), any Agency employee in the employee’s individual capacity, whether or not said person has been assigned to perform tasks under this Agreement.

8.4. No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by the Agency, and the Agency shall be entitled to offer and provide services to others, solicit other clients, and otherwise advertise the services offered by the Agency.

9. WARRANTIES AND REPRESENTATIONS

9.1. By Client. The Client represents, warrants, and covenants to the Agency that:

The Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
The Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Copyrights and Trademarks in connection with the Project does not and will not violate the rights of any third parties,
The Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
The Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

9.2. By Agency. The Agency represents, warrants and covenants to the Client that:

The Agency will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
Except for Third-Party Materials and Client Content, the Final Deliverables shall be the original work of the Agency and/or its independent contractors and to the best of the Agency’s knowledge, does not infringe the rights of any party.
Software Deliverables (e.g. websites and web applications) are guaranteed against software bugs, typos, display issues, and other issues preventing the work from functioning as intended, for a period of three (3) months from the date of the final invoice. This guarantee does not include failures caused by software updates, changes to legal and/or regulatory requirements, errors caused by the user, damages caused by security breaches, a failure to perform in a way in which it was not intended to, or a failure to achieve business objectives, performance targets, or other expectations.

10. INDEMNIFICATION, LIABILITY, & DISCLAIMER

10.1. By Client. The Client agrees to indemnify, save and hold harmless the Agency from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by a third party arising out of any breach of the Client’s responsibilities or obligations, representations, or warranties under this Agreement. Under such circumstances the Agency shall promptly notify the Client in writing of any claim or suit;

The Client has sole control of the defence and all related settlement negotiations; and
The Agency provides the Client with commercially reasonable assistance, information, and authority necessary to perform the Client’s obligations under this section.

The Client will reimburse the reasonable out-of-pocket expenses incurred by the Agency in providing such assistance.

10.2. By Agency. Subject to the terms, conditions, express representations and warranties provided in this Agreement, the Agency agrees to indemnify, save and hold harmless the Client from any and all damages, liabilities, costs, losses or expenses arising out of any breach of the Agency’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arising directly as a result of gross negligence or misconduct of the Client provided that:

The Client promptly notifies the Agency in writing of the claim;
The Agency shall have sole control of the defence and all related settlement negotiations; and
The Client shall provide the Agency with the assistance, information, and authority necessary to perform the Agency’s obligations under this section. Notwithstanding the foregoing, Agency shall have no obligation to defend or otherwise indemnify the Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by the Agency.

10.3. Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemnified party’s written consent.

10.4. The services and the work product of the Agency are sold “as is.” Except for those warranties set forth in Section 9, the Agency makes no warranty, written, oral, express or implied, including the implied warranties of merchantability, fitness for a particular purpose, with respect to the services or work product, to the extent permitted by applicable law.

10.5. Limitation of Liability. In all circumstances, the maximum liability of the Agency, its directors, officers, employees, and partners, to the Client for damages for any and all causes whatsoever, and the Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the Agency’s Project Fees and any Additional Fees in relation to the applicable Project Order. In no event shall the Agency be liable for any lost data or content, lost profits, business interruption, or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by the Agency, even if the Agency has been advised of the possibility of such damages.

11. TERM AND TERMINATION

11.1. Term. This Agreement shall commence upon the Effective Date and shall remain effective until terminated in accordance with this Agreement.

11.2. Termination. This Agreement may be terminated for convenience at any time by either party upon providing two (2) weeks written notice to the other party. This Agreement may be terminated effective immediately by the mutual agreement of the parties. This Agreement may also be terminated for cause effective immediately (without notice) if any party:

becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

11.3. In the event of termination, the Agency shall be compensated for the Services provided up to the date of termination, in the amount of:

any advance payments or deposits due,
hourly Fees incurred for work, or the portion of work, performed by the Agency up to the date of termination including any Additional Fees,
and, in the case of Project Orders specifying a minimum term commitment, a termination fee equal to the average of two (2) months of the Services identified in the Project Order.

11.4. In the event of termination by the Client, other than a termination for cause, the Client waives the right
to any discounts offered. Furthermore, the Client shall not have rights to use Deliverables, including Preliminary Works and Final Deliverables, except upon written consent from the Agency provided after such termination.

11.5. In the event of termination by the Agency or a termination for cause by the Client, and upon full payment of compensation due up to the date of termination as provided herein, the Agency grants to the Client such right and title as provided for in this Agreement with respect to those Deliverables provided to, and accepted by the Client as of the date of termination.

11.6. Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

12. GENERAL

12.1. Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

12.2. No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business.

12.3. Force Majeure. The Agency shall not be deemed in breach of this Agreement if the Agency is unable to complete the Services or any portion thereof by reason of fire, earthquake, flood, hurricane, or other severe weather, labor dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of the Agency or any local, provincial, federal, national or international law, governmental order or regulation or any other event beyond the Agency’s control (collectively, “Force Majeure Event”). Upon the occurrence of any Force Majeure Event, the Agency shall give notice to the Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services. If the parties are unable to agree to a revised schedule for completion of the Services, the agreement may be terminated upon full payment to the Agency of all compensation due under this Agreement up to the date of termination, and the Agency shall grant to the Client such right and title as provided for in this Agreement with respect to those Deliverables provided to, and accepted by the Client as of the date of termination.

12.4. Severability. In the event that any provision of this agreement is found to be void, invalid, illegal or unenforceable by a court of competent jurisdiction, such finding will not affect any other provision of this agreement. If any provision of this agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

12.5. Independent Legal Advice. The Client agrees that they have read, understood, and agreed with all provisions of this agreement and hereby acknowledges that they have had the opportunity to obtain independent legal advice with respect to it.

13.0. ACCEPTANCE

By signing, the parties hereto agreed to:

all of the terms and conditions of this Agreement, and
Each signatory has the full authority to enter into this Agreement and bind her/his respective party to all of the terms and conditions herein.