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Creative Marketing Strategies
MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) shall govern the provision of services to the undersigned
client (the “Client”) by Creative Marketing Strategies (“Agency”).
Additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery
thereof and the amount of fees payable therefore are set forth on the attached Schedule of Work (the “SOW”)
which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written
consent of both parties.
In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the
Agreement shall control.
- Additional Services, Project Changes
Any services outside the scope of the SOW or changes to previously approved work requested by the Client
shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties.
Each such additional SOW or Change of Scope is hereby incorporated herein by this reference. - Expenses
Client will be notified in advance for pre-approval of any additional expenses in excess of more than ten percent
(10%) of those set forth on the SOW.
At Agency’s discretion, Client shall either pay such fees directly to the third-party vendor or reimburse Agency
therefore upon presentation of applicable invoices. Agency shall maintain records of expenses. Where
applicable, Agency will invoice Client for all fees related to acquisition of talent or talent services in advance
and will only secure talent services upon receipt of all such fees from Client. - Time of Payment and Late-Payment Charges
The Client shall pay Agency for the work performed hereunder as set forth on the applicable SOW. All invoices
carry Net 15 payment terms.
Unless other payment method is agreed upon by both Parties, payment for invoiced services to Agency are
payable by check, credit card payment or other electronic payment, or money order.
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If paying via money order or check, payments should be made payable to Creative Marketing Strategies and
mailed to:
Creative Marketing Strategies
If paying via credit card or other electronic payment, a 3% fee will be added to cover the payment processing
fee.
Late payments will incur a 1.5% late fee that is compounded monthly.
In no event will any payment under this Agreement be contingent on receipt of any monies or other
compensation by the Client. For the avoidance of doubt, fees or commissions payable to Agency for media
planning and buying services are in addition to, and not inclusive of, Agency’s fees for other services which
may be listed in the SOW, such as design, branding, hosting, and content distribution and syndication. Delays
resulting from the action or inaction of Client may result in an adjustment in fees by Agency, subject to Client
approval. Each invoice hereunder is due and payable within 15 days after its invoice date. All rights of the
Client herein are conditioned on Agency’s receipt of full payment. In addition, Agency may suspend
performance of services and withhold delivery of materials until payment in full of all amounts due. Agency
shall not be liable for any damages, losses or liabilities that may arise out of Agency’s suspension of
performance and/or withholding of materials due to Client’s non-payment. Agency shall be entitled to all of its
costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys. - Client Representative
In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide
or maintain any necessary information and approvals that may be required by Agency (the “Client
Representative”). The Client Representative shall be responsible for coordination and review of the Agency’s
services and notifying Agency of Client instructions, change orders and approvals. The signature or e-mail
approval of the Client Representative shall be final and binding on Client. If after the Client Representative has
approved a design, the Client or any authorized person alters the scope of work or requires additional services,
the Client shall pay all fees and expenses arising from such changes and additional services as set forth in
section 1 above. - Client Obligations and Materials
The Agency’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling
its obligations. The Agency shall not be liable for any costs, charges or losses sustained by the Client arising
directly from any failure of the Client to fulfill its obligations under this Agreement.
All copy provided by the Client shall be in electronic format suitable for typesetting. Where photographs,
illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a
form suitable for reproduction without further preparation or alteration. The Client shall pay all fees and
expenses required to bring nonconforming materials up to such standards.
The Client warrants that all assets, concepts, materials, specifications, information and instructions provided by
Client or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work,
including on the Internet, without violating any laws and without violating or infringing any rights of any third
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parties.
Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of
Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants Agency a
nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection
with the Agency’s performance of the Agency’s Services and the production of the Deliverables.
All Third Party Materials are the exclusive property of their respective owners. Agency shall inform Client of
all Third Party Materials that may be required to perform the Marketing Services or otherwise integrated into
the Final Work. Under such circumstances, Agency shall inform Client of any need to license. - Approval of Work
Work will not commence until the signed SOW has been received. Within five business days following receipt
of any deliverables, the Client will provide Agency with either (a) written approval and acceptance of such
deliverable (which will not be unreasonably withheld), or (b) a written list of reasonable modification guidelines
that will bring the deliverables into compliance with the SOW. Each deliverable hereunder will be deemed
accepted by the Client if, within five business days of its delivery to the Client, the Client does not provide the
foregoing written notice.
The Client’s written approval of any deliverables, materials, plans or other Work created or produced by the
Agency in the course of the provision of the Services, or any cost estimate, will constitute the Agency’s
authority to purchase, publish, and make contracts for talent, space, time and other facilities and otherwise to do
any other act or thing which the Agency considers it reasonable to do in order to carry out its obligations under
this Agreement or any Statement of Work.
The Agency will not be obliged to commit to any expenditure on behalf of the Client without first receiving
written confirmation of the Client’s instructions and the Agency will not be responsible for the consequences of
any delay on the part of the Client in providing such written confirmation. - Suppliers
Unless otherwise stated in this Agreement or agreed by the parties in writing, the Agency’s contracts with
suppliers in respect of the Services shall be made in accordance with suppliers’ standard terms or such other
terms as the Agency is able to negotiate with the relevant supplier.
The Agency shall act as principal in all such contracts, but all rights and liabilities as between the Client and the
Agency shall correspond to those between the Agency and the various suppliers under such conditions,
including in particular any service levels and any rights of amendment, omission and cancellation. The Agency
shall use reasonable efforts to procure best commercial terms for the Client, and on the Client’s written request
the Agency shall supply the Client with the relevant terms and conditions.
With regard to the above, unless the parties agree to different arrangements in writing, the Agency shall
negotiate with any talent or celebrities (if applicable) on behalf of the Client, and the Agency shall contract with
such suppliers directly in order to derive maximum benefit from the relationship. - Legal Clearances and Indemnification
The Client is responsible for obtaining all legal clearances required for the performance of services hereunder.
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The Client shall indemnify, defend (at its own cost and expense) and hold Agency and its officers, employees
and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising
from any breach, misrepresentation or other act or omission of the Client. - Liability of Agency
Agency shall not be held responsible for delays or nonperformance caused by activities or factors beyond its
reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts
or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work
slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish
information or approve or disapprove work, or faulty performance by the Client or others, including third-party
contractors hired by Agency or by Client. Agency shall not be liable for any indirect, third-party, incidental,
special, consequential, exemplary or punitive damages arising out of this Agreement. Agency’s maximum
liability under this Agreement shall not exceed the total fees received by it hereunder. - Confidential Information; Non-Solicitation
Confidential information is that which relates to the Client’s or Agency’s research, development, trade secrets
or business affairs and includes, in the case of Agency’s confidential information, concepts presented to, but not
selected by, the Client; it does not include information that is generally known or easily ascertainable by third
parties. Agency and the Client shall mutually respect and maintain each other’s confidential information and
shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential
information does not include information which is public knowledge, was in the recipient’s possession before
receipt or is independently developed by the recipient. Neither party shall solicit the other’s employees,
independent contractors or consultants or engage them in any work independent the parties’ relationship under
this Agreement during the term of the Agreement and for two years thereafter. - Rights, Ownership and Usage
Subject to Agency’s receiving full payment under this Agreement, Agency assigns to the Client, without
representation or warranty, all rights, title and interest Agency may have in any work specifically created by
Agency for the Client pursuant to this Agreement, except that:
(a) Agency may use and distribute such work as part of its portfolio for promotional purposes;
(b) Agency shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and
materials (collectively, “Work”) which have been presented to the Client but not included in the final work
product;
(c) Agency shall own and retain all rights to any technology, technical documentation, inventions, algorithms,
software, architecture, logic, navigation, 3d modeling files, animation files and other source files for front-end
deliverables, computer programs, source codes, game engines or other backend and background elements, files
and features incorporated into or utilized by the Work (collectively, “Background Technology”).
Unless the parties agree otherwise in a written and signed Statement of Work, Agency shall retain ownership of
any and all Background Technology, including any and all associated intellectual property rights. Agency
hereby grants to Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce,
distribute, display and perform Agency’s Background Technology, in compiled machine readable object code
form only, to the extent incorporated into deliverables provided hereunder strictly for the purposes and in the
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territories set out in the applicable Statement of Work. Use of Background Technology for any other project, on
any other website or in any other medium shall be subject to additional fees and licenses which may be granted
or withheld by Agency in its sole discretion; and
(d) If the Client desires to utilize any of the Work, whether accepted or rejected by the Client hereunder, for any
marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this
Agreement, then the Client shall hire Agency to design, create, develop, market and otherwise implement such
work. The Client may solicit or hire a third party to implement such Work if, and only if, Agency declines to do
so and such third party is hired on terms in no way more beneficial than the terms first offered to Agency.
(e) Subject to the services provided hereunder, Agency shall retain all rights to any illustrations and other
proprietary artwork, if any, listed in any SOW (each item, a “Design”). Except as otherwise set forth in this
Section 11, Agency grants Client the limited, exclusive, irrevocable right to use the Designs as set forth in any
SOW. - Hosting
In addition to all other services set forth herein, Agency may provide the Client with hosting services in
accordance with the Hosting terms set forth in the SOW. In consideration for such hosting services, the Client
shall pay Agency the Monthly Hosting Fee set forth in the SOW. - General
Agency may employ Subcontractors to assist in completing Deliverables. Agency assumes responsibility for all
Work created by said Subcontractors and said Subcontractors are bound by all sections and clauses of this
Agreement in a manner consistent with Agency.
Agency shall not 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 Client. - Relationship of Parties
Agency is an independent contractor, not an employee of Client or any company affiliated with Client. Agency
shall provide the Services under the general direction of Client, but Agency shall determine 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. Agency and the Deliverables prepared by Agency shall not be deemed a work for hire as that term
is defined under Copyright Law. All rights, if any, granted to 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.
The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the
Parties. Client is free to engage others to perform services of the same or similar nature to those provided by
Agency, and Agency shall be entitled to offer and provide design services to others, solicit other clients and
otherwise advertise the services offered by Agency. - Warranties and Representations
Client represents, warrants and covenants to Agency that
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(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the
Client Content; and,
(b) To the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use
of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the
rights of any third parties.
Agency hereby represents, warrants and covenants to Client that
(a) Agency will provide Agency’s Services and produce the Deliverables as identified in the Agreement in a
professional and workmanlike manner and in accordance with all reasonable professional standards for such
services.
(b) To the best of Agency’s knowledge, the Final Work provided by Agency does not infringe the rights of any
party, and use of same in connection with the Project will not violate the rights of any third parties. - Indemnification
Client agrees to indemnify, save and hold harmless 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 Client’s
responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances,
Client shall promptly notify Agency in writing of any claim or suit. Client has sole control of the defense and all
related settlement negotiations. Agency shall provide Client with commercially reasonable assistance,
information and authority necessary to perform Client’s obligations under this section.
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Agency
agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or
expenses arising out of any finding of fact which is inconsistent with Agency’s representations and warranties
made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as
a result of gross negligence or misconduct of Client. - Term and Termination
Either party may terminate this Agreement for any reason upon giving 90 days’ prior written notice to the other.
Upon termination of this Agreement by Client without Agency’s fault or consent, Client shall pay Agency, in
addition to all of the fees earned by Agency pursuant to the terms hereof, an early termination fee equal to 0%
of the total remaining fees payable to Agency hereunder (as specified in the SOW), plus any and all expenses
and third-party costs reasonably incurred by Agency through the effective date of cancellation.
At Agency’s election, Client’s delay of work under this Agreement for a cumulative period of more than 30
days without Agency’s fault or consent shall be considered a termination of this Agreement by Client within the
meaning of the immediately preceding sentence. If Client desires to terminate this Agreement due to Agency’s
fault, Client shall give Agency written notice detailing the nature of Agency’s fault and possible remedies,
whereupon Agency shall have a reasonable period of time (but in no event less than 30 days) to cure such fault.
Termination by Client without providing the foregoing notice and cure period shall be considered “termination
without Agency’s fault’ as described above.
This Agreement shall be terminated if any Party becomes insolvent, files a petition in bankruptcy, or makes an
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assignment for the benefit of its creditors.
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. - Governing Law; Jurisdiction
This Agreement shall be interpreted and construed in accordance with the laws of the State of Florida, without
regard to any conflict of laws principles. Each party consents to the exclusive jurisdiction of the State and
Federal courts sitting in Florida for the purpose of hearing and deciding any and all disputes, claims and
controversies arising out of and relating to this Agreement. The prevailing party in any such action or
proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees
of its attorneys. - Severability
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the
remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable
provision shall be replaced by a valid or enforceable provision. - Headings
The numbering and captions of the various sections are solely for convenience and reference only and shall not
affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings
otherwise be given any legal effect. - Notices
Any and all notices required or permitted hereunder shall be sent by certified mail, return receipt requested, to
the address of the party for which intended, set forth below its signature hereto and, in the case of the Agency. - Digital signatures
Digital signatures shall be considered binding and enforceable.
Execution:
By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective
as of the last date of signature, and each signatory represents that it has the full authority to enter into this
Agreement and to bind her/his respective Party to all of the terms and conditions herein.
[A SEPARATE SOW WILL BE FURNISHED WITH THIS AGREEMENT THAT SPECIFIES
DELIVERABLES, TIMELINE, FEES, AND PAYMENT SCHEDULE.]
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Guarantee of Efforts:
We cannot guarantee the success of any of our efforts, but we do guarantee that the utmost of our care and
expertise will be employed as we work closely with you to reach your goals.
Cancellation Disclosure:
Please note:
If you determine our services are NO LONGER NEEDED and/or you choose NOT to renew your service
contract with us, you will be responsible for certain costs associated with hosting, maintaining, and
security for the website we produce on your behalf IF YOU CHOOSE TO CONTINUE HOSTING
WITH US anything that may have been hosted during your contract period. You can choose to continue
to host and maintain it through the company we utilize, or you can choose to move it to another hosting
platform at your discretion. We will provide disclosures in each conspectus regarding the particulars as
appropriate.
Other services we provide are more complexly integrated with our proprietary or licensed tools. Should
you choose to cancel our services in the future those services will cease, including but not limited to some
of your lead capture and lead nurturing tools that our company performs on your behalf.
Should you choose to cancel, your lead databases will be provided to you in a standard format such as
CSV or excel spreadsheet.
The content we have created and installed for you on your website will remain yours. Your website,
themes, plugins, and content will belong to you and will be your responsibility to maintain.
FUNNELS are most often hosted on one of OUR SYSTEMS. Should you choose to cancel, they will no
longer function/be available and/or useable or editable by you.
Please INITIAL here to indicate that you acknowledge the foregoing Cancellation Disclosure:
IN WITNESS WHEREOF, the parties have entered into this Agreement as of , 20___..
Creative Marketing Strategies Client: _________________ Client phone:___________
Client
Signature:_______________
Client address: __________
Lauren Mazzio Print name of authorized signatory:
Account Manager Title: ________________ Client email: __________