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Master Services Agreement

This Master Services Agreement, together with any Proposal (“Proposal”) incorporating these terms by reference (collectively, “Agreement”) is entered into between 1st Scribe, Inc. (“Perrill”), with its principal place of business located at 110 Cheshire Lane, Suite 105, Minnetonka, MN 55305 and you (“Client”) as identified in the Proposal.  The Effective Date is the date on which Perrill’s Proposal has been signed by Client (“Effective Date”) and shall be effective until terminated in accordance with the terms below.

BACKGROUND

  1. Perrill is engaged in the business of providing web design, development, marketing, hosting, email and related services;
  2. Client desires to retain Perrill to perform the services.

NOW, THEREFORE, Perrill and Client agree as follows:

  1.     Services.

          1.1        Services. Perrill will perform for Client the activities, services, and work (the “Services”) specified in a Proposal.  The parties may choose to enter into more than one Proposal from time to time, and all the Proposals are subject to the terms of this document.  To the extent there is an express conflict between this Agreement and a Proposal, the Proposal will control for the purposes of that specific Proposal only. Services will be provided according to the terms of the then-current Service Level Agreement, a copy of which is attached hereto and marked as “Exhibit A” and is available online at https://www.firstscribe.com/services-agreement-aup/. The Service Level Agreement may be modified from time to time in Perrill’s sole discretion. Promptly upon any such change, Perrill shall notify Client of the change and what provisions of the Service Level Agreement have been changed.  Client’s continued use of the Services after seven (7) days after such notice will constitute Client’s acceptance of the modified terms.

          1.2        Changes. Any significant changes in the scope of the Services and/or any Deliverables, shall be documented in a change order or amendment to the applicable Proposal. Perrill shall have no obligation to perform any additional Services or provide additional Deliverables unless a change order or amendment has been approved in writing by both parties (email approval is sufficient). Perrill reserves the right to re-estimate any agreed upon fees based on significant changes to the scope of the Services and/or Deliverables. Such re-estimates will be detailed in a change order or amendment to the Proposal.

          1.3        Client Obligations. Client will cooperate fully with Perrill in connection with Perrill’s performance of the Services. Client will immediately notify Perrill of any changes in Client’s mailing address, telephone, e-mail or other contact information. Except as otherwise provided in a Proposal, Client is responsible for all data and/or content uploaded in conjunction with the Services (the “Content”).

          1.4        Customer Service. Perrill will provide Client reasonable amounts of billable consultation via telephone and/or electronic mail in the use of the technology, but may not be able to assist with any services that are not maintained or controlled by Perrill.

  1.     Fees.

          2.1        Fees. Client will pay Perrill the project fee or monthly rates as identified in each Proposal for the Services performed by Perrill under the Proposal. Unless otherwise specified in the Proposal, payment of invoices is due thirty (30) days from the date of the invoice. Perrill may change the prices charged for recurring fees, including, without limitation, hosting, marketing, domain renewals or registration, and email accounts upon forty-five (45) days’ notice to Client, but such increases shall not exceed ten percent (10%) of the rate currently being charged at that time. Fixed price proposals for web based projects will be honored unless there exist significant technology, scope or functionality changes from the agreed to Proposal. Modifying elements, including, without limitation, designs, templates, infographics, technologies, content management systems or web pages after verbal or written approval by Client may incur additional hourly charges.

          2.2        Late Payments. If Client has not paid an undisputed invoice within ten (10) days of Client’s receipt of notice of nonpayment, a one and one-half percent (1.5%) interest charge (or the highest rate permissible under applicable law, whichever is less) will be assessed on all overdue balances. In addition, Client shall reimburse Perrill for all reasonable costs incurred by Perrill in collecting any late payments, including, without limitation attorneys’ fees.  In the event any invoice is not paid when due, Perrill may suspend performance of Services under any or all Proposals without liability, in addition to any other remedies to which Perrill may be entitled.

          2.3         Taxes. Fees are exclusive of applicable sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government entity (collectively, the “Taxes”) relating to the sales, purchase, delivery, or provision of the Services and Deliverables under this Agreement. Client shall be responsible for the Taxes; provided that in no event shall Client be responsible for any taxes imposed on, or with respect to, Perrill’s income, revenues, gross receipts, personnel or assets.

          2.4        Expenses. Client shall reimburse Perrill for all reasonable out-of-pocket expenses incurred by Perrill in the performance of the Services and approved in advance by Client; provided that such expenses are supported by receipts and other supporting documentation.  Expense invoices will be billed on a monthly basis and are due within thirty (30) days of the invoice date.

          2.5         Security Patches. From time to time, it may be necessary for Perrill to apply security patches to remediate potential vulnerabilities on your site. In that instance, Perrill will install security patches at Perrill’s hourly rate and Client agrees to pay Perrill for this work, even if Client was not consulted proactively. Client acknowledges and agrees that Perrill cannot wait for Client’s approval prior to applying the patches due to potential risks posed by potential security vulnerabilities. Security patches generally happen a few times per year and typically take one (1) to two (2) hours to install and test. This cost can vary depending on the security patch, the complexity of the site, the number of installed plug-ins, and other factors. Clients with support contracts may be exempt from these charges.

  1.     Rights in Deliverables; Background IP and Residuals.

          3.1        Deliverables. Contingent upon payment in full by Client, unless otherwise agreed in a writing signed by Perrill and Client, all rights, title and interest (including, but not limited to, all copyrights and all other intellectual property rights and ownership rights of every nature) in and to all material originated and prepared by Perrill (whether by Perrill’s employees or by Perrill’s subcontractors) specifically for Client under this Agreement (collectively, “Deliverables”) will be deemed works-made-for-hire, and as such, Client will own the Deliverables (excluding any Background IP included with or incorporated in the Deliverable). If for any reason a Deliverable is not a work-made-for-hire, or certain rights in and to the Deliverable are not covered by the work-made-for-hire doctrine, then Perrill, on behalf of itself, its employees, and its subcontractors, contingent upon Client’s payment in full of all outstanding undisputed invoices, agrees to transfer and assign, and by executing this Agreement does hereby transfer and assign, to Client, without further consideration, all right, title and interest in and to the Deliverable, including, but not limited to, all copyrights and all other intellectual property rights and ownership rights of every nature.  Client will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Perrill to Client.  Client may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses, and upon so doing shall promptly notify Fist Scribe.

          3.2        Perrill IP. Perrill hereby grants to Client a non-exclusive, non-transferrable, royalty-free license, for the term of this Agreement, to use the provided technology solely for the purpose of accessing and using the Services. Client may not use the provided technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from Perrill to Client any right, title, or interest in and to the provided technology, and all right, title and interest thereto will remain solely with Perrill. Client will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the provided technology. Perrill’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Perrill. Client will not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Perrill.

          3.3        Background IP. For the sake of clarity, Perrill retains all rights, title and interest, including without limitation, intellectual property rights in and to all materials, business processes, ideas, know-how, tools, media, source code, inventions or items developed, conceived and/or owned by Perrill prior to the date of the applicable Proposal or apart from and independent of Perrill’s performance for Client under this Agreement, including any derivatives, modifications improvements, or enhancements thereof (“Background IP”).  Unless set forth otherwise in a Proposal,  Perrill grants Client a non-exclusive, perpetual, royalty-free, non-transferable license to use the Background IP solely as necessary to make reasonable use of the Deliverables and the Services for its internal business purposes.

          3.4        Residual Knowledge.  Notwithstanding the above, but subject to Perrill’s obligations under Section 4, Perrill and its personnel shall be free to use any ideas, concepts or know-how developed or acquired by Perrill or its personnel during the performance of this Agreement to the extent obtained and retained by Perrill’s and its personnel as impressions and general learning. Nothing in this Agreement shall be construed to preclude Perrill from acquiring, developing, marketing or enhancing for itself or others deliverables of a similar nature or function as those used or created pursuant to this Agreement. Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Client sends to Perrill relating to the Services will be treated as non-confidential and non-proprietary. Perrill may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any lawful purpose.

          3.5        Client IP. Client hereby grants to Perrill a non-exclusive, royalty-free, worldwide right and license during the term of this Agreement, and solely for the purpose of providing the goods and services Perrill is obligated to provide pursuant to this Agreement, to (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform, and hyperlink the Content; and (b) make archival or back-up copies of the Content. Except for the rights expressly granted herein, Perrill does not acquire any right, title or interest in or to the Content.

          3.6        Third Party IP. If specified in a Proposal, Perrill may provide as part of the Deliverables certain third party items, including but not limited to premium fonts and stock photos, subject to license terms and conditions set by the third party.  Whenever a third party is referenced in a Proposal, Client agrees to be bound by that third party’s terms and conditions. With regard to images obtained from Getty Images or any other third party image supplier, Client agrees Perrill is authorized to accept Getty Images’, or such other third party image supplier’s, terms and conditions on Client’s behalf. Client’s use of stock images provided by Perrill under Getty Images’s terms and conditions is restricted to web use only.

  1.     Confidentiality

          4.1        Regarding information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) identified by the Disclosing Party as “confidential” or “proprietary” or that under the circumstances ought reasonably to be treated as confidential or proprietary (collectively, “Confidential Information”), the Receiving Party shall not, without the prior written consent of the Disclosing Party: (i) disclose such Confidential Information to any third person or entity other than in the proper course of performance under this Agreement; (ii) use such Confidential Information for any purpose other than performance hereunder; or (iii) use such Confidential Information in any manner that would be adverse to the interests of the Disclosing Party. The terms of this Agreement are also confidential. The confidentiality obligations of this Section 4.1 do not apply to any information or development that the Receiving Party can demonstrate: (i) is or subsequently becomes available to the general public other than through a breach by the Receiving Party; (ii) is already known to the Receiving Party before disclosure by the Disclosing Party; (iii) is developed through the independent efforts of the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) the Receiving Party receives rightfully from third parties that are not subject to any restriction as to use or disclosure of the information. 

  1.     Warranties.

          5.1        Each party represents and warrants that it has the full legal power and authority to enter into and perform its obligations under this Agreement (including any Proposal).

          5.2        Client warrants that it will adhere to Perrill’s Acceptable Use Policy, a copy of which is attached hereto and marked as “Exhibit B” and is available online at https://www.firstscribe.com/services-agreement-aup/. The Acceptable Use Policy may be modified from time to time in Perrill’s sole discretion. Promptly upon any such change, Perrill shall notify Client of the change and what provisions of the Acceptable Use Policy have been changed.  Client’s continued use of the Services after seven (7) days after such notice will constitute Client’s acceptance of the modified terms. Failure by Client to adhere to the Acceptable Use Policy, or any modifications thereto will constitute a material breach of this Agreement.

          5.3        Client warrants to Perrill, and agrees that during the Term of this Agreement it will ensure that: (a) Client is the owner or valid licensee of Content, and that Client has secured all necessary licenses, consents, permissions, waivers and releases for the use of Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Perrill to pay any fees, residuals, guild payments or other compensation of any kind to any person; (b) Client’s use, publication and display of the Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Client will comply with all applicable rules, regulations, and laws regarding the Content (whether local, state, national, or foreign) and will use the Services only for lawful purposes; (d) Client has used its best efforts to ensure that the Content is and will at all times remain free of all computer viruses, worms, Trojan horses and other type of malicious code; and (e) if Client records or uses the Services or tools provided under this Agreement to record any telephone calls or other communications, Client shall ensure that a notice of recording is provided in conformance with applicable law.

          5.4        Perrill warrants that the Services will be performed in a professional and workmanlike manner. This warranty is applicable to the Services at the time delivered.  Client must report any material deficiencies to Perrill within ninety (90) days of becoming aware of any such deficiency. This warranty does not apply if any error or defect in the Services is caused by Client’s misuse of the Services or the Services have been modified by any entity other than Perrill and such modification has caused the said error or defect.  For clarity, Client is solely responsible for Content provided by Client and for specifications or instructions provided by Client to Perrill, including ensuring any such instructions comply with any applicable laws.

          5.5        Perrill warrants to Client, and agrees that during the Term of this Agreement it will ensure that Client’s use of any software of other intellectual property provided by Perrill (whether sold, licensed, or sublicensed by Perrill to Client) will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any person.

         5.6           In the event of a breach of the foregoing warranties, or any alleged defect or breach for any Deliverable, Perrill will use commercially reasonable efforts to cure any such breach, at no additional cost to Client, within a reasonable timeframe. If Perrill is unable to cure such breach within a reasonable timeframe (not to exceed 30 days after receipt of Client’s written notice of such breach), Client may, at its option, terminate the Agreement by serving written notice in accordance with Section 8.2.

  1.     Warranty Disclaimer. THE WARRANTY ABOVE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  ADDITIONALLY, Perrill IS A MARKETING BUSINESS AND CANNOT AND DOES NOT PROVIDE LEGAL ADVICE OR CLEARANCE. CLIENT IS RESPONSIBLE FOR COMPLIANCE WITH LAWS RELATED TO CLIENT’S BUSINESS, INCLUDING BUT NOT LIMITED TO WEBSITE accessibility, PAYMENT CARD INDUSTRY DATA SECURITY STANDARDS, DATA PRIVACY AND SECURITY LAWS (INCLUDING THE E.U.’S GENERAL DATA PROTECTION REGULATION), and/or recording of telephone calls or other communications. ALL RECOMMENDATIONS AND DELIVERABLES PROVIDED UNDER THIS AGREEMENT ARE FOR INFORMATIONAL PURPOSES ONLY AND are not intended to serve as legal advice or as a substitute for the legal advice of an attorney. PERRILL DOES NOT GUARANTEE ANY PARTICULAR VOLUME OF BUSINESS TO BE ACHIEVED THROUGH THE USE OF SERVICES PROVIDED BY PERRILL UNDER THIS AGREEMENT.
  2.     Limitation of Liability.

          7.1        Client is responsible for verifying and maintaining accurate tax and shipping data if applicable and agrees to hold Perrill harmless from errors in tax and shipping even if Perrill assists in setting up tax and shipping calculations.

          7.2        IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (EXCLUDING LOST PROFITS), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, FAILURE OF ESSENTIAL PURPOSE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1.     Term and Termination.

          8.1        The term of this Agreement shall commence on the Effective Date and will extend for a period of thirty (30) days and will automatically renew from month to month thereafter, unless earlier terminated as provided herein.

          8.2        Either party may terminate this agreement upon written notice for material breach, provided, however, that the terminating party has given the other party at least fourteen (14) days written notice of and the opportunity to cure the breach. Termination for breach will not alter or affect the terminating party’s right to exercise any other remedies for breach.

          8.3        The terms of Sections 3, 4, 5.1, 5.6, 6, 7, 8, 9 and 11 shall survive the termination or expiration of this Agreement, as well as any other provisions as the circumstances may naturally dictate.

          8.4        Upon termination (except in the case of breach by Perrill) or expiration of this Agreement or of any Proposal, Client shall pay all of Perrill’s unpaid fees and out-of-pocket expenses that are due and have been accrued through the date of termination or expiration under each applicable Proposal, including labor or resources assigned through the termination date.

  1.     Indemnification. Client will indemnify and hold Perrill harmless against any claims incurred out of or in conjunction with breach of this Agreement, as well as all reasonable costs, expenses and attorneys’ fees incurred therein. Perrill will indemnify and hold Client harmless against any and all claims incurred out of or in conjunction with Perrill’s breach of this Agreement, as well as reasonable costs, expenses and attorney’s fees incurred therein.
  2.     Notices. All notices, authorizations, and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by express courier (e.g., DHL, Federal Express or UPS), charges prepaid; and addressed as for Perrill to the address provided in the introduction of this Agreement and for Client to the address provided in the applicable Proposal, or as updated from time to time.
  3.     Miscellaneous.

          11.1      Assignment.  Neither party may assign this Agreement, in whole or in part, without the express written consent of the other party, which shall not be unreasonably withheld, except that either party may assign this Agreement to an affiliate or in whole to a successor entity by way of merger, corporate reorganization, sale of substantially all assets, or similar transaction without the other party’s consent.

          11.2      Dispute Resolution; Applicable Law; Venue.  Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association, in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Minnesota. The arbitration will be held in Minnesota. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgement on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.

          11.3      Entire Agreement.  This Agreement and any Proposals constitute the entire agreement between Perrill and Client regarding its subject matter, and merges all prior and contemporaneous communications with respect to the subject matter hereof and thereof.  The terms on any purchase order or other form submitted by Client shall not apply to this Agreement.  Neither this Agreement nor any Proposal may be modified except by a written agreement signed by both parties.

          11.4      Compliance with Laws.  Client shall at its own expense obtain and maintain any governmental approval, consent, license or other authorization necessary to the performance of this Agreement. Client confirms that if Client acquires any Deliverables, documentation, or Services under this Agreement that are subject to the export control laws and regulations of the United States, it will not export or re-export them, directly or indirectly, either to (i) any countries that are subject to U.S. export restrictions; or (ii) any end-user whom Client knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons or any prohibited persons or entities.

First Scribe is now Perrill Why the change?