Master Services Agreement

Marketing Automation Support Services

Summary

 

SUMMARY:

__________________ has engaged The B2B Fusion ““, LLC for support & maintenance services in sales and marketing automation, including Marketo, Salesforce.com and other platforms as requested. Specific work efforts will be governed under SOWs that reference this MSA language below.

 

Terms & Conditions

 

  1. Services. The B2B Fusion , LLC (“The B2B Fusion ”) (“Agency”) agrees to perform for ________________. (“Client”) the services (the “Services”) set forth in such statements of work or proposals (each, an “SOW”) executed by B2B Fusion and Client from time to time during the Term of this Agreement, under the terms and conditions hereinafter set forth.
  2. Compensation and Payment Terms. In consideration of the provision of the Services, the Client will pay B2B Fusion the following:
    1. The fee structure as governed under supporting Statements of Work (SOWs), paid in progress payments throughout.
    2. All payments are strictly for the work performed directly by B2B Fusion . Additional expenses for other supporting vendors will be arranged and billed directly to Client; provided, however, no such additional expenses shall be incurred until approved in writing by Client.
    3. Ancillary work – if services by B2B Fusion are required outside the agreed-upon scope of work, said work will be performed at an hourly rate negotiated separately.
    4. Subsequent payments are due and payable within 30 days after receipt of invoice either by wire or physical check.
    5. Payment:
      1. If physical check: B2B Fusion , 20 Daniels Drive, Franklin, TN 37064  
      2. If wire: Wire Account Number 881892498
        Wire Routing Number 021000021
        Wire address: JPMORGAN CHASE, 383 Madison Avenue, New York, NY 10017
      3. All invoices will be directed to____________________.
    6. All invoices will be billed in original currency – US Dollars.
    7. In the event payments are not received by B2B Fusion within 30 days after becoming due, B2B Fusion  may:
      1. Charge interest on any such undisputed unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
      2. Suspend performance for all services until payment has been made in full.
  1. Term. The term of this Agreement shall commence on ________________________ and is valid for two years. Either party may terminate this Agreement at any time during the term, for any or no reason, by giving the other party 60 days prior notice of termination in writing. Client is obligated to pay for any work performed and approved expenses incurred through termination.  The provisions of Sections 5, 7, 11, 12, 16, 17 and 20 shall survive termination or expiration of this Agreement.
  2. Termination for Breach. In addition to any remedies that may be provided under this Agreement, this Agreement may be terminated as follows:
    1. If Client fails to pay any undisputed amount when due under this Agreement and such past due amount is not paid in full within 30 days after Client is notified in writing of the past due amount, then B2B Fusion may immediately terminate this Agreement upon written notice to Client;
    2. A party may terminate this Agreement upon written notice to the other party if (i) the other party has not performed or complied with any of the terms of this Agreement, in whole or in part, and such failure is not cured within 30 days after receiving written notice of such failure, or (ii) the other party becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
  3. License to Work Product. B2B Fusion  grants Client and its affiliates a perpetual and royalty free license to use for their own business purposes any and all work product, deliverables, intellectual property and other materials created or otherwise provided by B2B Fusion  in connection with the Services.
  4. Client’s Acts or Omissions. If B2B Fusion ’s performance of its obligations under this Agreement is prevented or delayed solely by any act or omission of Client or its agents, subcontractors, consultants or employees, B2B Fusion shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
  5. Confidentiality. B2B Fusion agrees that during the term of this Agreement and for three years thereafter that it will take all steps reasonably necessary to hold Client’s Proprietary Information in trust and confidence, and will not disclose or use Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement or authorized by Client. By way of illustration but not limitation “Proprietary Information” includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as “Inventions”); (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation or other matters relating to current or former employees of Client. Notwithstanding the foregoing, it is agreed that Proprietary Information shall not include any information which B2B Fusion  can prove from its records: (a) is known to B2B Fusion  at the time of disclosure to B2B Fusion  by Client; (b) has become publicly known through no wrongful act of B2B Fusion ; (c) has been rightfully received by B2B Fusion  from any third party without restriction on disclosure and without breach of any agreement with Client; (d) has been independently developed by B2B Fusion  without the use or aid of any of Client’s Proprietary Information; (e) has been approved for release by written authorization executed by an authorized officer of Client; or (f) is required to be disclosed by B2B Fusion  pursuant to a requirement of law. Further, Proprietary Information shall not include “Residuals,” designed to mean information retained in the memory of B2B Fusion ’s members to the extent used without reference to written materials containing Proprietary Information in order to refresh recollection to facilitate such use. This section shall survive the termination of this Agreement for a period of three years.
  6. No Solicitation by Client. During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Agency, employee or Agent of Agency who has been assigned to perform tasks under this Agreement or who has otherwise been in possession of Confidential Information of Client or which is in any way related to the scope of this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Agency shall be entitled to an agency commission to be the greater of, either (a) 50 percent of said person’s starting salary with Client, or (b) 50 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Agency, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
  7. No Solicitation by Agency. During the term of this Agreement, and for a period of twelve (12) months after expiration or termination of this Agreement, Agency agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or consultant of Client who has been assigned to perform tasks under this Agreement or who has otherwise been in possession of Confidential Information of Agency or which is in any way related to the scope of this Agreement. In the event such employment, consultation or work-for-hire event occurs, Agency agrees that Client shall be entitled to an agency commission to be the greater of, either (a) 50 percent of said person’s starting salary with Agency, or (b) 50 percent of fees paid to said person if engaged by Agency as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Agency. Client, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
  8. 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 Agency, and Agency shall be entitled to offer and provide Services to others, solicit other clients and otherwise advertise the services offered by Agency.
  9. Expenses. Client shall pay Agency’s reasonable and preapproved expenses incurred in connection with the Agency’s Services as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for postage, shipping, overnight courier, presentation materials, photocopies, parking fees and tolls, and taxis at cost; and (b) travel expenses including transportation, meals, and lodging, incurred by Agency with Client’s prior approval.
  10. Change Orders.
    a. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. B2B Fusion shall, within a reasonable time after such request, provide a written estimate to Client and of the likely time required to implement the change;
         i. any necessary variations to the fees and other charges for the Services arising from the change;
         ii. the likely effect of the change on the Services; and iv. any other impact the change might have on the performance of this Agreement.
    b. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.
  11. Warranty. B2B Fusion Services will be performed in accordance with generally and currently accepted industry standards for similar services and practices. This warranty is in lieu of all other warranties either expressed or implied.
  12. Limitation of Liability. In no event shall either party or its members, shareholders, agents, employees or independent contractors be liable to the other party or to any third party for any loss of use, revenue or profit, or loss of data or diminution in value, or for consequential, incidental, indirect, special or punitive damages (including, without limitation, attorneys’ fees), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not a party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall either party’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts actually paid to B2B Fusion pursuant to this Agreement.  Notwithstanding the foregoing, the limitation of liability provisions set forth in this Section shall not apply to a breach of the confidentiality provisions set forth in Section 7 or either party’s indemnification obligations set forth in Section 15.
  13. Indemnification. The Client will indemnify, defend, and hold harmless B2B Fusion for any claim, liability, damages and expenses, including without limitation reasonable attorney’s fees, arising out of or resulting from (i) any personal injury, death or property damage caused by the Client or its personnel, (ii) the gross negligence or willful misconduct of Client or its personnel or (iii) any third party claim that any data, materials, intellectual property or other item provided by the Client to B2B Fusion  infringes or misappropriates the intellectual property rights of such third party.
    B2B Fusion  will indemnify, defend, and hold harmless the Client for any claim, liability, damages and expenses, including without limitation reasonable attorney’s fees, arising out of or resulting from (i) any personal injury, death or property damage caused by B2B Fusion  or its personnel, (ii) the gross negligence or willful misconduct of B2B Fusion  or its personnel or (iii) any third party claim that any data, materials, intellectual property or other item provided by B2B Fusion  to the Client infringes or misappropriates the intellectual property rights of such third party.
  14. Relationship of Parties. It is agreed that B2B Fusion ’s Services are made available to Client on the basis that B2B Fusion  shall retain status as an independent contractor to Client and not as a Client employee. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. B2B Fusion  shall use B2B Fusion ’s own discretion in performing the tasks assigned, subject to the general direction of Client and subject to the express condition that B2B Fusion  shall at all times comply with applicable law. B2B Fusion  warrants that B2B Fusion  is not an employee of Client, and Client has no responsibility for workers compensation, state disability, or general liability related to services provided hereunder. B2B Fusion  assumes responsibility for all applicable U.S. Federal, State and Local withholding taxes, sales taxes, and unemployment taxes, as well as Social Security Tax and all other payroll charges arising from actual compensation paid.
  15. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
  16. Force Majeure. B2B Fusion shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of B2B Fusion  including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Client shall be entitled to give notice in writing to B2B Fusion  to terminate this Agreement.
  17. Resolution of disputes. By signing this Agreement, the Parties agree that any controversy or claim arising will be resolved by binding arbitration. Binding arbitration will be conducted by a panel of three arbitrators, selected from the American Arbitration Association National Panel of Commercial Arbitrators. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator’s decision will be final and non-appealable and may be entered in any court having jurisdiction. Unless and until the arbitrators decide that one Party is to pay for all (or a share) of the arbitrators’ fees and expenses, both Parties shall share equally in the payment of the arbitrators’ fees as and when billed by the arbitrators. The arbitration will be held in New York, New York unless the Parties mutually agree in writing to another place.
  18. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York.
  19. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective heirs, successors and assigns regardless of any form of corporate restructuring, renaming or merger. This Agreement may not be assigned by either party without the written consent of the other party, and any such attempted assignment shall be void and of no effect.
  20. Severability. If any one or more provisions (or any part thereof) of this Agreement shall be held invalid, illegal or unenforceable in any respect, that provision shall be construed so as to most closely reflect the original intent of the parties, but still be enforceable, and the validity, legality and enforceability of the remaining provisions (or any part thereof) shall not in any way be affected or impaired thereby.
  21. Notices. All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or by national overnight delivery service (such as FedEx), or delivered by hand to the party to whom such notice is required or permitted to be given, or sent by email and confirmed as received by the other party. If mailed, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The mailing address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.
  22. Counterparts; Facsimiles: This Agreement may be executed in multiple counterparts which, when assembled, shall constitute one original. A counterpart executed by facsimile transmission shall be deemed an original.
  23. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by both parties. The terms of this Agreement will govern all project assignments and services undertaken by B2B Fusion for Client, unless agreed otherwise, in writing.
  24. Records. During the term of this Agreement and for a period of one (1) year thereafter, B2B Fusion  shall keep all usual and proper records to enable Client to verify the hours worked and the amounts charged by B2B Fusion .  Client may, upon prior written notice, inspect such records for such verification purposes.
  25. Safety and Security Rules. When working on Client’s premises or accessing any of Client’s systems, B2B Fusion  agrees to comply with Client’s safety and security rules and procedures relating to the same.

 

Signature Page


IN WITNESS WHEREOF, the parties have signed this Agreement:

For B2B Fusion , LLC
Authorized signature:
Jon Russo
President
B2B Fusion , LLC
20 Daniels Drive,
Franklin, TN 37064

Date:  

 

For ________________
Authorized signature:                                     _______________________________

___________________ 

___________________ 

___________________                                  Date: 

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