Master Service Agreement

The following terms and conditions constitute the agreement (“Agreement”) between all clients and Blue Fountain Media (“BFM”), a New York Corporation, with its principal office at 102 Madison Ave, 2nd Floor, NY, NY 10016.

 1. Services. The following terms and conditions constitute the agreement (“Agreement”) between all clients and Blue Fountain Media (“BFM”), a New York Corporation, with its principal office at 102 Madison Ave, 2nd Floor, NY, NY 10016.

2. Fees, as compensation for services rendered, Client shall pay a fee that is agreed to and in accordance with the terms detailed in the SOW. All work is billed at $200 per hour (the “Standard Hourly Rate”) unless otherwise stated within the SOW. The Standard Hourly Rate may be changed by BFM upon thirty (30) days written notice.

 3. Client Representative. The Client will provide one (1) representative to communicate with BFM (regarding art direction, text images, functionality, etc.) to streamline the process and prevent miscommunication. In the event the Client changes its designated representative, BFM must be notified in writing of the change, and all prior approvals up to the time of notification of the representative change shall remain valid. Subsequent edits and change orders to previously approved work are out of scope, and will be billed at the Standard Hourly Rate 

4. Client Communication and Project Management. In order to avoid miscommunication, Client will provide all edits, approvals and requests to BFM in writing, via email, before implementation. If Client wishes to review edits via phone after they are emailed, a time will be confirmed in advance.
In the event Client communications with BFM is trending toward exceeding the allocated time, BFM shall notify Client in advance and bill such additional time at the Standard Hourly Rate.

5. Progress Reports. BFM will provide Client with updates via email and phone as work progresses at regularly scheduled times.

 6. Change Orders/Additional Client Requests. Should Client request BFM to perform services or tasks that are not provided for within the SOW or within this Agreement, or should the project exceed the number of hours allocated in this Agreement or the SOW because of additional work requested by Client, BFM will immediately notify the Client and the requested work will trigger a change order. Change orders will be subject to additional fees. In such a case, BFM will provide Client with a written time and cost estimate for the additional work for its review. BFM will not perform any out- of-scope or additional work without receiving prior written approval to proceed. Client will be charged at the Standard Hourly Rate or flat project rate, if applicable, for any work performed pursuant to Change Order.

7. Client Materials. Client shall retain ownership of all content and materials provided to BFM pursuant to this Agreement. Client takes full responsibility for any content (including without any limitations graphics, audio, copy text, video, and images) provided to BFM to be used in this project. Client represents and warrants that it has full rights to use all content and materials provided to BFM. Client indemnifies and holds harmless BFM from all damages, costs and expenses, including but not limited to, reasonable attorney’s fees, incurred by BFM as a result of a claim or assertion that content and/or material provided by Client may have violated the rights of another party.

8. Client Caused Delays. In order to complete Client’s project in a timely fashion, BFM has allocated personnel to perform work at scheduled times in accordance with a project timeline.  In the event Client fails to deliver content, images, directional notes, approvals or other required information to BFM by the dates specified in the project timeline, all subsequent deadline and project milestones will be postponed accordingly. Under no circumstances shall a payment be delayed due to Client’s failure to provide content. In the event Client fails to deliver content, images, directional notes, approvals or other required information to BFM by more than five (5) business days after the dates specified in the project timeline, subsequent deadlines may be postponed for lengthier durations due to BFM work personnel reallocation and rescheduling.  In the event Client fails to deliver content, images, directional notes, approvals for more than two (2) months after dates specified in the project timeline, final payment will be due, billed by the hour (not by the project), for all work completed to date and the project will be put on hold. 

9. Loss and/or Damages. (a) In no event will BFM be liable for any special, incidental, indirect or consequential damages whatsoever (including, but not limited to, damages for loss of business profits, business interruption or any other pecuniary loss) arising out of the services provided by BFM. Notwithstanding any damages that Client might incur for any reason whatsoever, the entire liability of BFM under any provision of this Agreement and Client’s exclusive remedy shall be limited to the lesser of the fee actually paid by Client or Client’s actual damages. The provisions herein shall apply to the maximum extent, even if any remedy fails its essential purpose.
(b) In the event that hosting is a part of this Agreement, the fee for the hosting services will be invoiced monthly, quarterly or annually per the Client’s request, provided in writing. The third party hosting service provider shall be responsible for internet accessibility and all hardware. The hosting service provider is an independent third party not controlled or directed by BFM. Accordingly, in no event will BFM be liable for any direct, general, special, incidental, indirect or consequential damages whatsoever (including but not limited to loss or damage to data, damages for loss of business profits, business interruption, loss of information or any other loss) (collectively, “Damages”) arising out of the use, limited use of, or inability to use the work provided by BFM due to problems (including but not limited to errors, delays, deletions, malfunctions, service interruptions, etc.) associated with the functions of the hosting service provider. Under no circumstance will BFM have any liability for any Damages incurred by Client as a result of downtime that Client’s website may experience regardless of the cause of such downtime nor shall BFM have any liability for Damages resulting from the marketing services BFM provides to Client.

10. Ownership of Work. All work performed by BFM for the Client will become the property of the Client upon full payment of all amounts due and owing. Notwithstanding the foregoing statement, BFM may retain ownership of certain source code, in which case the Client is granted a non-revocable, non-exclusive, worldwide, royalty free license to use such source code owned by BFM. Additionally, the Client’s work may contain software and other property licensed by third parties. In such event, the terms of such third party license shall control.

11. Monthly Service Retainer Plan. In the event that a monthly service retainer is a component of this Agreement, the Client acknowledges that upon the execution of this Agreement BFM will allocate substantial personnel and equipment resources to the Client. Therefore, the term for service of the monthly service retainer fee will be a one-year commitment by the Client. Following expiration of the one-year term, the monthly service will automatically renew for an additional one-year term. BFM will provide at least sixty (60) days prior written notice of any increase in the fee for monthly maintenance and/or monthly marketing services before a new term commences. Notwithstanding the foregoing, Client may cancel this agreement after one year by providing BFM with sixty (60) days prior written notice.

12. Expenses. Client will be responsible to pay the expenses of any resources it requests BFM to purchase, such as stock photos, fonts, videos, audio files, third party licenses or other media assets. Client may choose to purchase these items directly and provide them to BFM for use on their project. Client will reimburse BFM for any additional expenses including travel, copying, duplicating, shipping, and postage.  BFM will request Client approval for all expenses over $250.00.

13. Warranty. BFM guarantees its code for a period of 30 days to be free of bugs and errors due to workmanship. The 30-Day warranty period is valid only for projects that are hosted and uploaded to the live servers by BFM. This guarantee will be waived if the client requests FTP (source code of the site) access to the site server.

14. FTP Access. In order to receive FTP access Client will sign a document exempting BFM from any and all liability for the website or from any and all issues that may result on the server or with any other software running on that server caused by having granted such access to Client. FTP access will not be granted to the Client until and unless all outstanding payments are received.

15. Invoices. Invoices are due upon receipt, unless otherwise stated. Accounts thirty (30) days past due are subject to a five (5) percent finance charge accrued per month on the outstanding balance. Client agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees, court costs and other expenses of collection resulting from any default by Client in any of the terms hereof.

 16. Non-Solicitation. During the term of this Agreement and continuing until the second anniversary of the termination of this Agreement, Client agrees that without the written consent of BFM, it shall not solicit or hire any employee, agent or consultant of BFM who was employed or retained by BFM during the term of this Agreement, as an employee, agent, independent contractor, project term worker, or in any other capacity. In the event that a BFM employee or consultant is hired in any capacity within the second anniversary of the termination of this Agreement, Client shall be liable to and pay BFM monetary damages equal to two years of that agent’s, employee’s or consultant’s total compensation paid by Client, which, even if not an annual salaried position, shall be computed to as such for purposes of this paragraph.

17. Governing Law. This Agreement shall be deemed made in, and shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of law. Any dispute, controversy or claim arising out of or relating to this Agreement or to the breach, termination or invalidity of this Agreement (collectively, “Disputes”) shall be settled only by an action or proceeding commenced in the Federal or New York State courts located in New York County, State of New York; and the Client consents to jurisdiction over it by, and exclusive venue in, any such court for any Disputes.

18. Termination. (a) Termination After One Year. Either party may cancel this Agreement after one year, for any reason, with 60 days advance notice provided to the other party in writing. If Client elects to terminate this Agreement with or without cause pursuant to this subparagraph, Client will be immediately liable for payment of the lesser of the following two amounts: (a) the amount remaining to complete the “milestone” that is currently being worked on by BFM pursuant to the SOW; or (b) an amount equal to two months’ payment pursuant to the SOW. All tasks and/or services scheduled to be completed by BFM for the time between the issuance of the cancellation notice, and cancellation effective date shall be completed by BFM, provided Client pays amounts due pursuant to this subparagraph within five (5) days of providing notice to terminate.
(b) Termination Prior to One Year. If, prior to one year’s expiration of this Agreement, Client terminates this Agreement, with or without cause, Client will be immediately liable for payment of the greater of the following two amounts: (a) the amount remaining to complete the “milestone” that is currently being worked on by BFM pursuant to the SOW; or (b) an amount equal to two months’ payment pursuant to the SOW. BFM will owe Client no work if client terminates prior to the one year expiration of this Agreement.

19. Entire Agreement. This Agreement constitutes the entire and final Agreement between the Parties and supersedes any and all prior oral and written agreements or discussions. Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect.

20. Written Notice. Email is an acceptable form of communication under each and every provision of this Agreement.