MSA Terms & Conditions - PCG Digital

Master Services Agreement Terms and Conditions

Master Services Agreement

These Terms and Conditions (the “Terms”) are by and between Pasch Consulting Group, Inc. (“PCG”), a Delaware corporation located at 2640 Highway 70 Suite 8-201, Manasquan, NJ 08736 and Client (defined below) (each a “Party” and together, the “Parties”).  As used herein, “Client” means the client party identified on the attached PCG Order form (“Order”).

1.

Acceptance.

Client has accepted the Terms by executing an Order that references these Terms. The Terms, together with the Order, constitutes the complete and exclusive agreement between PCG and Client with regard to its subject matter and supersedes all prior oral or written proposals, agreements, representation and other communications between the parties with respect to the services set forth herein.

2.

Scope of Services.

PCG shall render certain digital marketing services as set forth in the Order (the “Services”) pursuant to the terms and conditions set forth herein. Services shall be performed in accordance with the Order, and unless otherwise indicated in the Order, shall begin three (3) to five (5) business days upon PCG’s receipt of the signed Order. PCG shall not be obligated to provide any services requested by Client not expressly listed on the Order. Services are non-cancelable and non-refundable.

3.

Billing and Payments.

a) Billing.
Billing will commence upon the Effective Date and PCG shall provide invoices on the first of each month thereafter. After the Initial Term, PCG has the right to adjust the pricing based on PCG’s current pricing at the time of renewal.

(b) Payments.
Client’s first monthly payment, including any start-up fees, shall be due upon executing the applicable Order. Thereafter, Client shall receive invoices on a monthly basis. All payments owed to PCG as shown on any invoice are due upon Client’s receipt of that invoice and shall be paid within thirty (30) days following the date on which Client receives such invoice (the “Payment Deadline”). PCG may impose a late fee of 5% of the total amount then owed in the event that Client fails to make payment within ten (10) days of the Payment Deadline. Client must maintain a credit card on file with PCG, which shall be charged for the first monthly payment, including any start-up fees. Thereafter, Client may pay PCG via check, automated clearing house (ACH), bank wire or credit card. Client shall be responsible for payment of any fees or out of pocket costs PCG incurs due to Client’s choice of payment (e.g. credit card processing fees, Client system fees, etc.). PCG reserves the right to charge Client’s credit card for any unpaid monthly fees.

(c) Pricing.
All pricing set forth in the Order shall remain fixed during the Initial Term.  After the Initial Term, PCG reserves the right to adjust the pricing based on PCG’s current pricing at the time of renewal. 

4.

Client Assets.

Where Client supplies equipment, documentation or information (hereinafter the “Client Assets”), including but not limited to, descriptions, tools, tables, photographs, videos, object code, source code, discs or other media) to PCG or any of its employees or representatives, PCG shall ensure that they are treated as confidential information, properly safeguarded and stored. Title to the Client Assets shall at all times remain with Client and PCG may only use the Client Assets for performance of the particular Service for which it has been provided. All Client Assets shall be returned to Client at the completion of the Service or on termination of the Service. UNLESS OTHERWISE AGREED UPON IN WRITING BY THE PARTIES, ANY AND ALL DOMAINS OR WEBSITES PURCHASED BY PCG SHALL REMAIN THE PROPERTY OF PCG.

5.

Intellectual Property.

For avoidance of doubt, nothing in this Agreement is intended to grant or transfer any right to the other Party under any patent, copyright or other intellectual property nor shall this Agreement grant or transfer to the other Party any right in or to the Confidential Information, or any derivatives thereof. For the sake of clarity, the Parties agree that the Services and all proprietary technology underlying the services shall remain the property of PCG.

6.

Suspension of Services.

In the event that payment in full is not received from Client on or before the Payment Deadline, PCG shall have the right: (i) upon providing ten (10) calendar days written notice (the “Suspension Notice”), to suspend or block, at any time after such Suspension Notice, all or any portion of all of the Services then being provided to Client; and (ii) to immediately place any pending Order on hold, and to decline to accept any new Orders or requests from Client. PCG may continue such suspension until such time as Client has paid in full all charges then due, including any and all late fees and reinstallation charges. The right to suspend services is in addition to and independent of PCG’s other rights and remedies set forth herein

7.

Confidentiality.

(a) “Confidential Information” means non-public information that is provided to or disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), or to which the Receiving Party otherwise has access, in connection with this Agreement. Confidential Information includes, without limitation, proprietary business information and trade secrets, business plans, marketing and promotion programs, financial and accounting data, information, lists, reports, and data pertaining to customers, suppliers, employees, contractors, products, and pricing.

(b) The Receiving Party may only disclose the Disclosing Party’s Confidential Information to its employees, consultants or third-party contractors to the extent required for the Receiving Party to (i) perform its obligations hereunder; (ii) enforce its rights against the other; or (iii) to fully exploit the Services performed hereunder.  The Receiving Party shall ensure that employees, consultants, and third-party contractors with access to the Disclosing Party’s Confidential Information are bound by and adhere to the terms of the confidentiality provisions of this Section 8.  The Receiving Party shall be liable for the unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any third party to whom the Receiving Party discloses it.  Without limiting the foregoing, the Receiving Party shall exercise at least the same standard of care in protecting the confidentiality of the Disclosing Party’s Confidential Information as it does with its own Confidential Information of a similar nature and, in any case, no less than a reasonable standard of care.  The confidentiality obligations under this Section 8(b) shall survive for a period of three (3) years following the termination or expiration of this Agreement.  Notwithstanding the foregoing, the obligations of confidentiality hereunder with respect to Confidential Information that constitutes a trade secret under applicable law shall continue after termination of the Agreement until such information ceases to be a trade secret under applicable law.

(c) Non-Confidential Information. Notwithstanding the preceding provision, Confidential Information does not include:

(i) Information that at the time of disclosure is, without fault of the Receiving Party, available to the public by publication or otherwise;

(ii) Information that the Receiving Party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other;

(iii) Information received from a third party with the right to transmit such information without violation of any secrecy agreement or confidentiality obligations with the Disclosing Party; and

(iv) Information that is independently developed by the Receiving Party.

(d) In the event that the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall, to the extent reasonably practicable and not prohibited by law, judicial, or regulatory authority, deliver prompt notice thereof to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy, at Disclosing Party’s sole expense. The Receiving Party shall furnish only that portion of Confidential Information that is legally required and make reasonable efforts at the Disclosing Party’s expense to obtain or assist in obtaining a protective order.

8.

Non-Solicitation.

Throughout the term of the Agreement and for a period of one (1) year after the termination or expiration of the Agreement, Client shall not employ, solicit or offer employment, either directly or indirectly (including without limitation, through the use of any third party) to any employee of PCG without the prior written consent of PCG. Client acknowledges that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to ascertain the actual amount of damages resulting from such breach.

9.

Indemnification.

Client shall indemnify, defend and hold PCG harmless from any and all third party claims, actions, damages, liabilities, costs and expenses (including attorney’s fees and expenses) arising out of or related to the Client’s business, including, without limitation, Client’s use of the Services contemplated in this Agreement.

10.

Term of Service; Termination

(a) Term of Service. This Agreement and the prices listed will begin on the execution of this Agreement by the Client and continue for the initial term of service set forth in the Order, after which this Agreement will automatically renew for a like term (so long as Client is current with all Payments), unless Client provides prior written notification canceling this Agreement sixty (60) days prior to the expiration of the term. At each renewal, PCG reserves the right to adjust the pricing based on PCG’s current pricing at the time of renewal.

(b) Termination for Default. PCG may terminate the Agreement immediately in the event of Client’s default. The following shall be considered an event of default: (i) Client’s failure to pay amounts owed by the Payment Deadline; (ii) Client’s breach of its confidentiality obligations as set forth herein; or (iii) Client’s breach of any other provision of this Agreement and failure to cure such breach within thirty (30) days of receiving notice thereof.

(c) Effect of Termination. Upon any termination under Section 4(b), all undisputed fees and payments due to PCG as of the effective date of termination, including all accrued and unpaid fees and reimbursable expenses, shall be paid to PCG within ten (10) business days after delivery to Client of an itemized statement of those fees and expenses, and PCG shall promptly return to Client any and all Client Assets then in PCG’s possession or under its control.

11.

WARRANTIES; DISCLAIMER.

PCG warrants that it has the right to enter into this Agreement and the Services will be delivered in a professional and workmanlike manner. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, PCG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

12.

LIMITATION OF LIABILITY.

EXCLUDING A PARTY’S INDEMNIFICATIONS, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF AN OTHERWISE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PCG’s LIABILITY TO CLIENT FOR DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO PCG DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF CLIENT’S CLAIMED LOSS.

13.

Arbitration.

Except for collection actions for outstanding payments and for the right of either Party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by arbitration by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be held in New Jersey and conducted in English.  Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction.  The prevailing Party shall be entitled to receive from the other Party its attorney’s fees and costs incurred in connection with any action, proceeding or arbitration hereunder. 

14.

Miscellaneous.

(a) Headings.
The headings used in this Agreement are for purposes of convenience only and shall not be used in construing the provision hereof.

(b) Force Majeure.
PCG shall not be responsible for failure to perform under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labor trouble or work interruption, loss of IP address or other internet disruption, or any cause beyond its reasonable control.

(c) Further Assurances.
The Parties hereto agree to execute such other documents and perform such other acts as may be necessary or desirable to carry out the purposes of this Agreement.

(d) Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, successors and assigns.

(e) Severability.
If one or more of the provisions of this Agreement shall be deemed voided or otherwise limited, then the remaining provisions shall continue to the fullest extent enforceable by law.

(f) No Waiver.
No provision of this MSA or any Order may be waived except with the written consent of the waiving party, which consent will specifically refer to such provision and explicitly make such waiver or amendment. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any term of this Agreement shall constitute a consent to any prior or subsequent breach.

(g) Applicable Law.
This Agreement shall be governed by and construed in accordance with the laws of the New Jersey without regarding to its conflict principles.

(h) Independent Contractor.
Nothing in this Agreement will be construed to make either Party an employer, employee, agent or partner of the other, and this Agreement will not be construed to create rights, express or implied, on behalf of or for the use of any Party other than the Client and PCG.

(i) Entire Agreement.
This MSA and each Order represents the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior agreements, representations and covenants, oral or written.

(j) Notices.
All notices under the Agreement must be in writing. The notices must be delivered personally, mailed by certified mail, return receipt requested, and first-class mail to the other Party at the address written in this contract or by email to info@pcgcompanies.com or Client’s email address listed in the Order.

(k) Conflict.
In the event of any conflict between the terms of this MSA and an Order, the Order shall control. 

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