HMG Creative, Master Service Agreement
This Master Service Agreement (“Agreement”) is entered into between HMG Creative, LLC (“HMG”), located at 2307 Thornton Road, Suite 105-1, Austin, TX 78704, and the Client identified in the Proposal, as defined below. HMG and Client are each a “Party” and together, the “Parties” to the Agreement. Subject to Client’s payment of the applicable Project Fees as set forth in the Proposal and continuous compliance with the Agreement, HMG will provide the Services set forth in the applicable Proposal or quote subject to the Agreement. The Agreement between the Parties consists of the following: (a) This Agreement; and (b) The initial sales quotation and proposal for Services (“Proposal”) (collectively, the “Terms and Conditions”). The Terms and Conditions, including its exhibits, constitutes the entire and final agreement between the Parties and supersede all express or implied, prior and contemporaneous agreements, negotiations, communications and understandings, whether in written or oral form. The Parties agree as follows:
1. HMG Services.
a. Marketing Services. HMG shall perform all services (“Services”) and provide all Work Product and Custom Deliverables (Work Product and Custom Deliverables are defined below and collectively are, “Deliverables”) set forth in the applicable initial Proposal and/or the applicable Project Estimate (defined below). HMG shall use commercially reasonable efforts to perform all Services and provide all Deliverables to Client by the applicable Project End Date set forth in the Proposal. HMG shall notify Client where additional fees are required to complete the Services and Deliverables set forth in the applicable Proposal and shall provide Client with a quote for such additional Services and Deliverables (“Project Estimate”). Any such Additional Fees for additional Services and Deliverables shall be effective only upon the written approval of the Project Estimate by the Client. HMG may provide Client with a Project Estimate for additional Services and/or Deliverables by issuing Client an additional Proposal and Project Estimate (collectively, the “New Project Proposal”). Client may accept the New Project Proposal by executing the New Project Proposal or by requesting that HMG begin performance of the Services set forth in the New Project Proposal in writing (including but not limited to email). Notwithstanding any term or condition to the contrary, all New Project Proposals shall be subject to the Terms and Conditions of this Agreement. HMG shall perform all Services hereunder on a non-exclusive basis and as an independent contractor to Client.
b. Website Design and Development
- Text Content – Unless specified, HMG is not responsible for writing or editing any text copy for your website. However, we offer copywriting/editing services billed at our standard hourly rate. Otherwise, the client shall submit only one final version of content and must do so in a timely manner.
Commercial Photography/ Imagery – You will supply us with digital imagery for your project. If you would like us to select and purchase stock photography for you, we can certainly do so and will bill you for the licensing rights for any photos purchased. Another option would be to purchase your own stock photography. We are happy to recommend vendors as necessary.
APIs, Plug-ins, and Third-Party Licensing – We rely on the services of third-party software that requires licensing. We will communicate and bill all licensing plug-ins, and API fees directly to you. We are not responsible for the uptime, performance, or stability of any third-party service. Should a third-party service change and in any way alter the scope of your project, your website, or your budget, we will document, communicate, and bill for all required integration points.
- Accessibility – Applicable deliveries from both parties will comply with the accessibility standards set forth in the SOW at the time of delivery. We are not responsible for any accessibility requirements outside the specific deliverables defined in the SOW. Should no accessibility requirements be set forth in the SOW, you release us from any obligation to accessibility compliance. You are responsible for the accessibility compliance of all web content (user-created text, images, video, sound, files) and any/all changes made to the completed project.
Changes and Revisions – We know from plenty of experience that fixed-price contracts are rarely beneficial to you, as they often limit you to your first idea about how something should look or how it might work. We don’t want to limit either your options or your opportunities to change your mind. The quoted project cost is based on the number of hours that we estimate we’ll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind, add extra pages, revise content after submission or add new functionality, HMG can accommodate your request but the extra time needed will be billed separately. We just ask that you put any requests in writing so we can keep track of changes along the way.
- Browser testing & support
We will support and test across each of the latest two stable versions of the following browsers:
- Internet Explorer (PC)
- Microsoft Edge (PC)
- Safari (Mac)
- Chrome (PC, Mac)
- Firefox (PC, Mac)
- iOS: Latest two stable versions of Default browsers on iOS 10
- Android: Latest two stable versions of Default browsers on Android S7
*Note about browser optimization and future proofing: Although we create websites that we believe will function properly for a long time, we cannot guarantee optimization for future releases with significant changes or for new browsers that might enter the marketplace.
- Technical Support – In the event your website includes self-managing tools, you will be provided a 2-hour hands-on tutorial. If assistance is needed beyond this initial tutorial, we are happy to help you, but you will be billed at our standard hourly rate.
Copyrights – You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the website are either owned by your organization or that you have permission to use them. When we receive your final payment, copyright is automatically assigned as follows: You own the graphics and other visual elements that we created for you. We will give you a copy of all the files. Be sure to store them safely, as we are not required to keep them or provide any native source files that we used in making them. You also own text content, photographs and other data you provided. We love to show off our work and share what we have learned with other people, so we also reserve the right to display and link to your completed project as part of our portfolio.
Warranty – If your project includes a web application, web development, or software development, we will ensure the product performs as intended for 90-days after the completion and subsequent launch. This limited warranty does not extend to unsatisfactory performance due to factors beyond our control such as, but not limited to, the client or an agent other than us attempts to update the site’s pages, infrastructure, or source files in a way that causes damage to individual pages or the site’s architecture. The time necessary to make any repairs will be billed hourly. We will not test websites in old or abandoned browsers, for example, Internet Explorer 6 or 7 or previous versions of Safari or Firefox unless otherwise specified. If you need to show the same or similar visual design to visitors using these outdated browsers, you will be billed hourly for any additional coding necessary and its testing.
c. Landing Page Design and Development:
Design: We will design 1 unique page type, with 3 rounds of revisions included on the visual design before we move into development.
- Number of Pages: Your landing page will be made up of 1 webpage. We’re happy to scope additional pages as needed.
- Content: We’ll need to collect all content from your team including text, photos (unless purchased), and any videos you’d like to include. HMG will utilize the core messaging established in our strategy and will perform a review/edit session of all copy provided to ensure it aligns with our overall messaging goals. If additional photography or copywriting are needed, we will scope those needs separately.
- Development: Your new landing page will be developed into a WordPress Content Management System, providing a user-friendly framework that’s easy to manage. The landing page will also be built in a responsive format, making it compatible for various monitor sizes on desktops/laptops as well as for tablets and mobile devices. A Beta URL will be set up for development, including two rounds of revisions, feedback and testing in beta development. Upon approval, the beta website will be pushed live to the final web hosting environment.
- Integrations: This website does not include any integrations or advanced functionalities, such as an eCommerce shopping cart. We’re happy to incorporate these features for you if needed and will work with you to find an economical and appropriate solution.
- Search Engine Optimization: Your new landing page will be built following search engine optimization (SEO) best practices. Please note, successful SEO requires a continuing strategy of publishing content. You should not expect your website to rank extremely high if you do not have a proactive and ongoing approach to SEO.
QA/ Testing + Final Review / Live Release: During Beta testing, we will work with your team to devise the most efficient approach to feedback. After all feedback points have been addressed, a final review will be held. Upon acceptance, we will move toward a live release, moving all files to the production environment. After launch, post review/QA will take place.
- Future of Browsers and Devices: A note about browser optimization and future proofing: Browser optimization occurs for the latest two versions of each of the main browsers unless otherwise specified. This also includes iOS browsers. However, we have no way of knowing exactly what changes browsers will make in the future. Although we believe your landing page will function properly for a long time, it’s important to note that it is possible a browser will release a significant update, or that new, relevant browsers will enter the marketplace.
d. Website Hosting. HMG shall provide website hosting services (collectively, “Hosting Services”) to Client in accordance with the Proposal and/or Project Estimate executed between the Parties. HMG’s Hosting Services will be provided with 99.9% of uptime and should HMGs server experience a physical downtime that results in up time of less than 99.9%, Client’s sole remedy and HMG’s exclusive liability under the Agreement shall be to provide Client with a credit equal to one (1) month of free Hosting Services. For the avoidance of doubt, HMG’s Hosting Services uptime calculation does not include any planned maintenance or downtime of third-party services that Client’s website may depend upon and up-time calculations shall be made by HMG using HMG monitoring tools and/or server logs, in HMG’s sole discretion. Except as specifically stated in this section, HMG is not liable for any loss of traffic, data, or sales that may result during any downtime of Client’s website. HMG will use reasonable commercial efforts to transfer Client’s website to HMG so that HMG may perform Hosting Services but HMG makes to guarantees regarding the availability, ability, or time requirement to complete a transfer of Client’s website. Client acknowledges that Hosting Services requires using a variety of third-party services and should any such third-party service result in a failure of Hosting Services or downtime to Client’s website, Client acknowledges and agrees that HMG is not responsible for any loss of traffic, data, or sales. In connection with Client’s purchase of Hosting Services, HMG will use reasonable commercial efforts to provide you with prior notice of any issues regarding your website and planned maintenance. If Client has any questions regarding the Hosting Services, Client may contact HMG and we will use reasonable commercial efforts to respond to Client’s question in a timely manner.
2. Payment; Client’s Obligations.
Client agrees to the following:
- To appoint, in writing, a sole representative with full authority to provide any necessary information and approvals that may be required by HMG Creative (the “Client Representative”).
- To ensure that Client’s personnel assigned to the project are available as may be reasonably required by HMG Creative to more fully and efficiently complete the Services.
- To attend and participate in scheduled calls and meetings;
- To complete mutually agreed upon client responsibilities;
- To review work in process on a regular basis and provide feedback to the personnel assigned by HMG Creative on in-process and completed work;
- To notify HMG Creative immediately should Client require changes to the Services under the Statement of Work, at which time all outstanding amounts payable to HMG Creative shall be invoiced to Client, and the parties shall, in writing and acting reasonably, amend the Statement of Work to reflect the required changes to the Services;
- Project Completion Contingency – It is our goal to work with you expeditiously so that we can complete your project in a timely manner. If you are unable to adhere to the predetermined timeline, your project could be delayed significantly. If we have requested specific information from you and it’s not received, if your project is stalled for reasons outside of our control for more than 30 days, or if you choose to place your project on a voluntary hold, then the project will be suspended and a Monthly Management Fee of $800 will begin on the 1st of the following month until project completion. This protects HMG Creative from any project-related bandwidth interruptions and/or content management system/third party application updates that may require further future development.
- Project Termination – Should you decide to cancel/terminate your project at any point during production, you will be billed at our standard hourly rate for any work completed plus 25% of the total contract amount.
- Annual Rate Adjustments: The rate structure listed will increase automatically by a modest 5% each year, on the first day of January, to adjust for the average increase in the cost of doing business. Any standalone projects (e.g. full redesigns, as-needed projects and other previously scoped engagements) currently underway at the first of the year will remain at the pre-established rate until the project(s) is/are completed. All monthly-based programs will also be included with the annual increase. The increase will not impact ongoing paid media plans.
- Client shall pay HMG the applicable Project Fees in accordance with the applicable payment schedule set forth in the Proposal. Where applicable, HMG shall invoice Client for Additional Fees and provide Client with an itemized and detailed account of the additional hours of Services once actually performed by HMG. HMG may invoice Client for all expenses related to performance of the Services that are set forth in the relevant Proposal, Project Estimate, or as otherwise previously agreed to by Client in writing. Except for HMG’s performance of media buys for Client, Client shall pay all invoices within net fifteen (15) days of receipt of the applicable invoice by check or wire transfer. Client shall pay all invoices for media purchases by HMG for Client within net 10 (10) days of receipt of the applicable invoice by check or wire transfer. All Fees set forth in the Proposal or Project Estimate, as applicable, are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges (collectively, “Taxes”) of any kind imposed by any governmental authorities on such amounts. In the event that Client has not paid an applicable invoice within net thirty (30) days of receipt, HMG may suspend or terminate the Services and/or Hosting Services, and Client’s account access will not be restored until payment has been received in full. In addition, HMG may not issue additional Proposals or Project Estimates for additional Services or Hosting Services if Client has not remitted payment for applicable invoices by their respective due dates, if any. Client shall be responsible to pay all such Taxes related to the performance of Services hereunder and HMG may invoice Client for such Taxes. For any payment that is not paid by Client by its applicable due date, Client will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Client shall select a representative to be the primary point of contact (“Client Contact”) with HMG, as identified in the Proposal. Client Contact shall promptly respond to all information requests and inquiries from HMG.
3. Proprietary Rights.
a. Website Development. If the Services in the Proposal are for website development the following terms apply. “Work Product” means all HTML files, Java files, and website-related graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other website-related Deliverable (excluding logos) provided to or prepared for Client by HMG in accordance with these Terms and Conditions. Subject to Client’s full payment of the applicable fees for Services and Deliverables, HMG grants Client a fully-paid, worldwide, irrevocable (except in the event of a breach of these Terms and Conditions by Client), non-exclusive license without the right to sublicense, to use and publish the Work Product solely for the purpose of operating Client’s commercial website.
b. Pre-Existing Materials. A Party’s “Pre-existing Materials” shall mean the documents and materials of the Party, including but not limited to any data, know-how, methodologies, software, trademarks, service marks, logos, inventions, improvements, developments, concepts, content, and other proprietary materials owned by a Party or in which the Party has an interest, in each case developed or acquired by the Party prior to the Effective Date of this Agreement. Client hereby grants HMG a limited, non-exclusive, revocable, royalty-free license to modify, create derivative works from, publish, and otherwise use Client’s Pre-Existing Materials as necessary to perform the Services and provide the Deliverables set forth in these Terms and Conditions. HMG’s license to Client’s Pre-Existing Materials shall terminate upon the termination of these Terms and Conditions and Client represents and warrants that as of the Effective Date, Client possesses all right, title, interest, and ownership to the Pre-Existing Materials. Subject to Client’s full payment of the applicable fees for Services and Deliverables, HMG grants Client a worldwide, irrevocable (except in the event of breach of these Terms and Conditions by Client), fully-paid, non-exclusive and perpetual license to use HMG’s Pre-Existing Materials that HMG has made a part of the Deliverable or Services, solely for the purpose of using the Website. All Pre-Existing Materials of each Party remains the sole and exclusive property of the respective Party or the Party’s licensors.
c. Custom Deliverables. “Custom Deliverables” means all final logos developed by HMG for Client and printed marketing materials and merchandise that are prepared for Client by HMG in accordance with these Terms and Conditions. Subject to Client’s payment of the applicable fees, HMG acknowledges and agrees that such Custom Deliverables, as applicable, are works made for hire as defined in 17 U.S.C. §101 and Client is the sole and exclusive owner of all right, title, and interest to the Custom Deliverables. Upon the reasonable request of Client and at Client’s sole expense, HMG shall take such further commercially reasonable actions to perfect the assignment of the Custom Deliverables to Client, including but not limited to execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights to any Custom Deliverable.
d. Restrictions. Except as expressly authorized in these Terms and Condition, Client will not copy, modify, distribute, transfer by any means, display, sublicense, rent, reverse engineer, decompile, or disassemble HMG’s Pre-existing Materials, Work Product, or any Deliverable. All rights not specifically granted in this Section 3 (Proprietary Rights) are reserved by HMG.
e. Press Releases. Client acknowledges and agrees that HMG may issue customer lists, social media entries, press releases, external advertisings, marketing materials, or promotion materials (collectively, “Press Releases”) that identify Client as a customer of HMG. Client grants HMG a perpetual, irrevocable, royalty-free, worldwide, license to use Client’s Pre-existing Materials including but not limited to Client’s trademarks and logos on HMG’s Press Releases
f. Confidentiality Obligation. “Confidential Information” means any information that the disclosing party (“Discloser”) discloses in written or oral form, that is: (a) marked as proprietary or confidential; or (b) by its form, nature, content, or mode of transmission would to a reasonable party (“Recipient”) be deemed confidential or proprietary including but not limited to HMG’s counseling and advice. A Discloser’s Confidential Information includes, but is not limited to, its Pre-Existing Materials. Confidential Information excludes information that is: (1) generally known or available to the public through no act or omission of the Recipient; (2) rightfully known or acquired by Recipient without restrictions as to use or disclosure prior to receiving such information from Discloser; (3) rightfully disclosed to Recipient by a third party having proper possession of such information and without any restrictions as to use and disclosure; (4) independently developed by Recipient without use of Discloser’s Confidential Information; or (5) information which the Recipient has been authorized in writing by Discloser to disclose without restriction including but not limited to and Deliverables that includes either Party’s Pre-Existing Materials. During the term of these Terms and Conditions and for a period of three (3) years following expiration or termination of these Terms and Conditions, the Recipient will not disclose, discuss, transmit, or publish any of Discloser’s Confidential Information except as necessary for the performance of its obligations under these Terms and Conditions or as expressly authorized in writing by the Discloser. Notwithstanding the foregoing, Recipient shall be permitted to disclose Confidential Information as specifically set forth in Section 3(d) of these Terms and Conditions and in connection with a judicial or administrative proceeding to the extent that such disclosure is required under applicable law or court order, provided that Recipient shall give Discloser prompt and timely written notice of any such proceeding and shall offer reasonable cooperation in any effort of Discloser to obtain a protective order.
4. Representations and Warranties of the Parties.
a. Client represents and warrants that (a) Client owns all right, title, and interest to Client’s Pre-existing Materials; and (b) HMG’s use of Client’s Pre-existing materials to perform the Services for Client or provide the Deliverables will not violate, infringe, or misappropriate the intellectual property right of any third party or any contract or obligation with any third-party.
b. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, HMG MAKES NO OTHER REPRESENTATION AND WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR SUITABILITY. EXCEPT AS SET FORTH IN THIS SECTION 4, ALL SERVICES AND DELIVERABLES (INCLUDING WORK PRODUCT AND CUSTOM DELIVERABLES) ARE PROVIDED ‘AS IS’ AND CONSULTANT DOES NOT WARRANT THAT THE SERVICE OR DELIVERABLES WILL BE ERROR OR BUG FREE, PRODUCE ANY DESIRE RESULTS, OUTCOMES, OR OTHERWISE MEET CLIENT’S SPECIFIC REQUIREMENTS.
Client shall defend and indemnify HMG from any third party claim, suit, action or proceeding (“Claim”) arising out of any Claim that alleges: (a) HMG’s use of Client’s Pre-existing Materials infringes or misappropriates the intellectual property right of any third party; and/or (b) Client’s conduct, content, materials, and/ or website violates any third party right, contract, or policy. HMG shall promptly notify the Client in writing of any Claim and cooperate with the Client at the Client’s sole cost and expense. The Client shall immediately take control of the defense and investigation of the Claim and shall employ counsel of its choice to handle and defend the Claim, at the Client’s sole cost and expense. The Client shall not settle any Claim in a manner that would adversely affect the rights of HMG without HMGs prior written consent.
6. Limitation of Liability.
EXCEPT FOR EITHER PARTY’S OBLIGATIONS UNDER SECTION 3(F) (CONFIDENTIALITY) AND CLIENT’S OBLIGATIONS UNDER SECTION 5 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE COSTS OF COVER, LOSS OF PROFIT, LOST FILES, LOST MATERIALS, LOST DATA, USE, SAVINGS, OR REVENUE, OR THE CLAIMS OF THIRD PARTIES, WHETHER BASED ON A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. WITHOUT LIMITING THE FOREGOING, EACH PARTY’S TOTAL LIABILITY (EXCEPT FOR EITHER PARTY’S OBLIGATIONS UNDER SECTION 3(F) AND CLIENT’S OBLIGATIONS UNDER SECTION 5) TO THE OTHER PARTY UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE TOTAL AMOUNT OF CLIENT’S FEES PAID OR PAYABLE UNDER THE APPLICABLE PROPOSAL GIVING RISE TO SUCH LIABILITY.
7. Term and Termination.
These Terms and Conditions shall commence on the Effective Date and shall continue for a six (6) month period (“Term”) unless terminated sooner pursuant to this Section 7 (Term and Termination) of these Terms and Conditions. These Terms and Conditions shall automatically renew for successive one (1) month periods upon expiration of the Term unless either Party provides written notice of its desire for nonrenewal thirty (30) days prior to the expiration of the Term (“Term” shall reference the initial Term and renewal Term[s], if any). Either Party may terminate these Terms and Conditions for cause upon written notice to the breaching Party, if: (a) the breaching Party has materially breached these Terms and Conditions; (b) the non-breaching Party has provided written notice to the breaching Party of the breach; and (c) the breaching Party does not cure such breach within fifteen (15) days after receipt of the notice of breach. Notwithstanding the foregoing, upon Client’s failure to timely remit any fee by the applicable due date, HMG may suspend performance of the Services or provision of the Deliverables until the applicable fee has been received in full. Upon termination or expiration of these Terms and Conditions: (i) each Party shall return the other Party’s Confidential Information and Pre-Existing Materials (except as may be incorporated into a Deliverable) and certify in writing to the other Party that it has complied with this Section 7; (ii) Consultant shall cease performing Services on the effective date of termination or expiration; and (iii) Client shall be entitled to any refund, payout of credits, or other damages of any kind due to the termination. The obligations of the Parties with respect to Section 2 (Payment; Client Obligations), Section 3 (Proprietary Rights), Section 5 (Indemnification), Section 6 (Limitation of Liability), and Section 9 (Remedies), and Section 8 (General Terms) shall survive termination or expiration of these Terms and Conditions.
8. General Terms.
Notices under these Terms and Conditions may be sent in via overnight carrier to the Party’s address listed above or via email. Notice via overnight carrier shall be deemed delivered one day after shipment and email notice shall be deemed delivered upon sending to the correct email address without notification of email bounce or like error. The Terms and Conditions may be executed in counterparts and/or using electronic signature, and each counterpart shall be deemed an original and together, constitute the agreement. HMG shall not be liable to Client, nor be deemed to be in breach of these Terms and Conditions for any failure or delay in performing Services or providing Deliverables, to the extent that such failure or delay is the result of acts beyond HMG’s reasonable control, including but not limited to: Client’s failure to timely respond to requests from HMG, acts of God, flood, fire, explosion, war, invasion, riot, civil unrest, embargoes, or national or regional emergency (“Force Majeure Event”). If HMG’s performance under these Terms and Conditions is affected by a Force Majeure Event, HMG shall provide timely notice to Client stating the expected period of time the occurrence is expected to continue and HMG shall use reasonable commercial efforts to minimize the effects of such Force Majeure Event. These Terms and Conditions may be amended only by a written agreement signed by both Parties that references these Terms and Conditions. Neither party shall assign or transfer any rights or obligations under these Terms and Conditions without the prior written consent of the Party, and any unconsented assignment or transfer shall be null and void. Any term of these Terms and Conditions that is found to be unenforceable or illegal may be amended to render the term enforceable to the maximum extent permitted by law and legality, validity, or enforceability of the remaining terms of these Terms and Conditions shall not be affected. These Terms and Conditions shall be governed by the laws of the State of Texas (without reference to conflict of law principles) and the Parties irrevocably consent to the exclusive personal jurisdiction of the state and federal courts located in Travis County, Texas for any matter arising out of or related to these Terms and Conditions. The Terms and Conditions may be executed in counterparts and/or using an electronic signature, and each counterpart shall be deemed an original and together, constitute the agreement.
If you have any questions regarding our terms, please contact your representative directly, or email us here.