Dative, Inc. Master Service Agreement

This Master Services Agreement ("MSA") applies to Dative, Inc. (“Dative”) and customers who engage Dative for website design, development, or consulting services (each a "Client").

1. DEFINITIONS

As used herein and throughout this Agreement:

1.1 “Agreement” means the entire content of this Services Agreement, the Statement of Work documents, together with any other Supplemental documents, and/or any exhibits, schedules, or attachments.

1.2. “Statements of Work [SOW]” means the services and Deliverables described in any document that references this agreement, details the fees for such work, and is signed by the parties (each an “SOW”). Upon signing, each SOW becomes part of this agreement. If an SOW conflicts with this agreement, the terms of the SOW control as to the work described in the SOW.

1.3 “Client Content” means all materials, information, photography, writings, and other creative content provided by the Client for use in preparing and/or incorporating the Deliverables.

1.4 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium, as defined and enforceable under U.S. Copyright Law.

1.5 “Deliverables” means the services and work product specified in the Statement of Work to be delivered by Dative to Client in the form and media specified in the Statement of Work.

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

1.7 “Final Deliverables” means the final versions of Deliverables provided by Dative and accepted by the Client.

1.8 “Preliminary Works” means all work including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Dative and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Deliverables.

1.9 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Statement of Work.

1.10 “Services” means all services and the work product to be provided to Client by Dative as described and otherwise further defined in the Statement of Work.

1.11 “Third Party Materials” means proprietary third-party materials which are incorporated into the Final Deliverables, including, without limitation, stock photography or illustration.

1.12 “Trademarks” means trade names, words, symbols, designs, logos, or other devices or designs used in the Final Deliverables to designate the origin or source of the Client's goods or services.

2. STATEMENT OF WORK

The terms of the Statement of Work shall be effective for 15 days after presentation to the Client. If the Client does not execute this Agreement within the identified time, the Statement of Work may be cancelled or subject to amendment, change, or substitution.

3. FEES AND CHARGES

3.1 Fees. In consideration of the Services to be performed by Dative, Client shall pay to Dative fees in the amounts and according to the payment schedule set forth in the Statement of Work, and all applicable sales, use, or value-added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2 Additional Costs and Expenses. The Project pricing includes Dative’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs, and fees, photography and/or artwork licenses, fonts, talent fees, music licenses, and online access or hosting fees, as well as Dative’s incidental and out-of-pocket expenses including postage, shipping, presentation materials, photocopies will be billed to Client unless specifically otherwise provided for in the Statement of Work. Client shall also pay for travel expenses, including transportation, meals, and lodging, incurred by Dative with Client’s prior approval.

3.3 Invoices. All invoices are payable upon receipt. A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment.

3.4 Failure to Pay. Dative reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full, which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, Fees, Charges, or the costs of Changes.

4. CHANGES

4.1 General Changes. Unless otherwise provided in the Agreement, Client shall pay additional charges for changes requested by Client that are outside the scope of the Services on a time and materials basis at Dative’s project hourly rate of $175 per hour. Such charges shall be in addition to all other amounts payable under the Statement of Work, despite any maximum budget, contract price, or final price identified therein. Dative may extend or modify any delivery schedule or deadlines in the Statement of Work and Deliverables as may be required by such Changes.

4.2 Substantive Changes. If the Client requests Changes that amount to a revision in or near excess of 15 percent (15%) of the time required to produce the Deliverables and/or the value or scope of the Services, Dative shall be entitled to submit a new and separate Statement of Work to the Client for written approval. Work shall not begin on the revised services until a fully signed revised Statement of Work and, if required, any additional retainer fees are received by Dative.

5. DELIVERY

5.1 Timing. Dative will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Statement of Work. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Dative. No response from the client regarding deliverables for three consecutive business days is deemed acceptance by the Client. Dative shall be entitled to request written clarification of any concern, objection, or correction. Client acknowledges and agrees that Dative’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Statement of Work and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition, or Dative’s obligations under this Agreement.

5.2 Testing and Acceptance. Dative will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Dative, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Statement of Work or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction, change, or amendment, and Dative will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes, or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

6. CLIENT RESPONSIBILITIES

6.1 Client Obligations. In addition to any assumptions or obligations in the SOW, Client acknowledges that they shall be responsible for performing the following in a reasonable and timely manner:

(a) provide Client Content necessary for Dative’s performance of its services in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Statement of Work;

(b) ensure that Client stakeholders are available and responsive over the course of the project;

(c) ensure that all Client feedback and approvals are provided through a single point of contact;

(d) Provide any necessary access and coordinate any decision-making with parties other than Dative so that Dative can perform its services.

(e) final proofreading.

If the Client fails to perform the Client Obligations, Dative may provide written notice specifying the failure and requesting that the Client correct the failure. If the Client does not correct the failure within ten [10] days of its receipt of the notice, Dative may, by written notice to the Client, stop work under the SOW and invoice for services provided through the date of work stoppage. To resume services, Dative may require an amendment to the SOW, including but not limited to project fees and schedule.

In the event that Client has approved Deliverables but errors, such as but not limited to typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

7. INTELLECTUAL PROPERTY

7.1 Copyright Assignment. Provided Client has complied with the terms of this agreement, and upon final payment to Dative for services, Dative shall automatically thereby grant, transfer, assign, and convey to Client all rights, title, interest, ownership, and all subsidiary rights for the Final Deliverables.

Notwithstanding the foregoing, Dative retains ownership in and to all engineering, including code and database frameworks and/or any and all process files, notes, documents, or other materials created by Dative in connection with the services performed under this contract, and Dative grants Client a worldwide, nonexclusive, irrevocable license for the use of such engineering, code, and database frameworks and/or any and all process files, notes, documents, or other materials. Client further grants Dative a worldwide, nonexclusive, irrevocable license to display the written or visual content developed by Dative for Client in Dative’s portfolio and for other business and marketing purposes.

7.2 Accreditation/Promotions. Dative expressly retains the right to reproduce, publish, and display the Deliverables in Dative’s portfolios, website, or marketing materials for the purposes of recognition and promotion. To such end, Dative may describe its role in the Project and the Services provided on its website and in other promotional materials.

8. CONFIDENTIAL INFORMATION

8.1 Non-disclosure. Each party acknowledges that in connection with this Agreement, it may receive certain confidential or proprietary technical and business information and materials of the other party, including, without limitation, Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Statement of Work except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party or is otherwise properly received from a third party without an obligation of confidentiality.

8.2 Non-Disparagement: Client shall, during and after participation in and use of Dative’s services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding Dative or any of Dative’s officers, directors, employees, personnel, agents, policies, services or products other than to comply with the law.

9. RELATIONSHIP OF THE PARTIES

9.1 Independent Contractor. Dative is an independent contractor, not an employee of Client or any Dative affiliated with Client. Dative shall provide the Services under the general direction of Client, but Dative shall determine, in Dative’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Dative and the work product or Deliverables prepared by Dative 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.

9.2 Dative Agents. Dative shall be permitted to engage and/or use third-party service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Dative shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

9.3 Design Tools. Any and all Design Tools developed during the performance of this Agreement are the sole property of Dative. Such Design Tools may constitute Dative’s Intellectual Property, and Client has the right to use such only in accordance with the terms and conditions set forth herein.

9.4 No Exclusivity. 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 Dative, and Dative shall be entitled to offer and provide design services to others, solicit other clients, and otherwise advertise the services offered by Dative.

10. WARRANTIES AND REPRESENTATIONS

10.1 By Client. Client represents, warrants, and covenants to Dative that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (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, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

10.2 By Dative. (a) Dative represents, warrants and covenants to Client that Dative will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Dative further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Dative and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Dative, Dative shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Dative to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Dative’s knowledge, no part of the Final Deliverable infringes the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Statement of Work or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Dative shall be void.

(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DATIVE MAKES NO WARRANTIES WHATSOEVER. DATIVE EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

11. INDEMNIFICATION/LIABILITY

11.1 By Client. Client agrees to indemnify, save, and hold harmless Dative 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, Dative shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Dative provides Client with commercially reasonable assistance, information, and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Dative in providing such assistance.

11.2 By Dative. Subject to the terms, conditions, express representations, and warranties provided in this Agreement, Dative 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 Dative’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arising directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Dative in writing of the claim; (b) Dative shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Dative with the assistance, information and authority necessary to perform Dative’s obligations under this section. Notwithstanding the foregoing, Dative shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Dative.

11.3 Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF DATIVE ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DATIVE, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS, AND AFFILIATES (“DATIVE PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF DATIVE. IN NO EVENT SHALL DATIVE BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DATIVE, EVEN IF DATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. TERM AND TERMINATION

12.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

12.2 This Agreement may be terminated at any time by either party effective immediately upon written notice, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or

(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

12.3 In the event of termination, Dative shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Dative or Dative’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

12.4 In the event of termination by Client and upon full payment of compensation as provided herein, Dative grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

12.5 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.

13. GENERAL

13.1 Modification. This Agreement constitutes the entire agreement of the parties relating to its subject matter, supersedes all prior oral or written understanding or agreements regarding that subject matter and may not be amended, modified or cancelled except by a written instrument executed by both Dative and Client.

13.2 Waiver. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

13.3 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.

13.4 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

13.5 Force Majeure. Dative shall not be deemed in breach of this Agreement if Dative is unable to complete the Services or any portion thereof by reason of fire, weather, labor dispute, act of God or public enemy, death, illness or incapacity, or any local, state, federal, national or international law, governmental order or regulation, or any other event beyond Dative’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Dative shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

13.6 Governing Law and Dispute Resolution. This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. The parties specifically consent to the local, state and federal courts located in the Commonwealth of Massachusetts. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Dative will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Dative shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs.

13.7 Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect.

13.8 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.

13.9 Integration. This Agreement comprises the entire understanding of the parties on the subject matter herein contained, and supersedes all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Statement of Work and any other Agreement documents, the terms of the Statement of Work shall control. This Agreement comprises this Basic Terms and Conditions document, and the Statement of Work.

By executing the SOW, the parties hereto have agreed to all of the terms and conditions of this Agreement, and each signatory represents that he/she has the full authority to enter into this Agreement and to bind his/her respective party to all of the terms and conditions herein.