Master Service Agreement
Terms and Conditions
DEFINITIONS
Agreement means the Project Proposal, Terms and Conditions and any other attached documents.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal.
Services means all services and the work product to be provided to Client by Thaiane Assumpcao OÜ as described and otherwise further defined in the Project Proposal.
Final Deliverables means the final versions of Deliverables provided by Thaiane Assumpcao OÜ.
Deliverables means the services and work product specified in the Project Proposal to be delivered by Thaiane Assumpcao OÜ to Client.
Client Content means all materials, writing, images or other content provided by Client used in preparing or creating the Deliverables.
Third-Party Materials means proprietary third-party materials which are incorporated into the Final Deliverables, including without limitation stock photography, illustration or copy.
Thaiane Assumpcao OÜ’s Tools means all tools developed and/or used by Thaiane Assumpcao OÜ in performing the Services, together with any software, or other inventions whether or not patentable, and general non-copyrightable concepts and functional elements.
THAIANE ASSUMPCAO OÜ SERVICES
Thaiane Assumpcao OÜ shall perform the services listed in the Project Proposal.
PROJECT PROPOSAL
By accepting or paying for the Project Proposal, Client will be taken to have accepted the terms of this Agreement.
The terms of this Agreement expire 5 days after being submitted to Client, in case the Project Proposal is not approved by Client or receives no reply from Client. If this Agreement expires, Thaiane Assumpcao OÜ may modify the Agreement and resubmit it to Client.
COMPENSATION
Fees: Client agrees to pay Thaiane Assumpcao OÜ the fees listed in the Project Proposal, including all taxes.
Expenses: Client will pay Thaiane Assumpcao OÜ’s expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost; (b) Mileage reimbursement, other than normal commuting; (c) Travel expenses, other than normal commuting, but including airfare and rental vehicles, with Client approval.
Additional Costs: Pricing in the Project Proposal includes only Thaiane Assumpcao OÜ fees. Any other costs, such as subscriptions, tools or softwares, will be billed to Client.
PAYMENT
Payment Schedule: Payments are due when Project Proposal is accepted by Client in written form. Advance payment is due for project confirmation. Final payment is due at the end of the project upon delivery of Final Deliverables. Any advance payment shall become non-refundable once Thaiane Assumpcao OÜ has confirmed the project.
Invoices: All invoices and payment requests are payable upon receipt. Invoices shall list any expenses and additional costs as separate items.
Cancellation or withdrawal: Should Client cancel or withdraw the assignment prior to its completion, Thaiane Assumpcao OÜ must be compensated for the percentage of total services performed.
LATE PAYMENT
Late Fee: A monthly service fee of 1.5 percent, or the maximum allowed by law, is payable on all overdue balances.
Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.
Collection Expenses: Client shall pay all collection or legal fees caused by late payments.
Withholding Delivery: Thaiane Assumpcao OÜ may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
Withholding License: All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.
CHANGES TO PROJECT SCOPE
Change Request: If Client wants to change the scope of work after accepting the Project Proposal, Client shall send Thaiane Assumpcao OÜ a written Change Order describing the requested changes in detail. Within 5 days of receiving a Change Order, Thaiane Assumpcao OÜ will respond with a statement proposing Thaiane Assumpcao OÜ’s availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Thaiane Assumpcao OÜ will evaluate each Change Order at its standard rate and charges.
Changes: If Client requests Changes after Project is confirmed, Thaiane Assumpcao OÜ shall be entitled to submit a new and separate Proposal to Client for written approval. Thaiane Assumpcao OÜ shall not begin work on the revised services until a fully accepted revised Proposal and any additional fees are received.
Changes includes, without limitation, source content change or modifications, subjective preferences or preferential terminology not previously requested, additional research, format or layout changes or other changes.
Acceptance/Rejection: Client will have 5 days to respond in writing accepting or rejecting the new Proposal. If Client rejects the Proposal, Thaiane Assumpcao OÜ will not be obligated to perform any services beyond those in the original Agreement.
DELAYS
Thaiane Assumpcao OÜ Delays: Thaiane Assumpcao OÜ shall use all reasonable efforts to meet the delivery schedule. Thaiane Assumpcao OÜ may extend the due date for any Deliverable by giving written notice to Client.
Client Delays: Client shall use all reasonable efforts to provide needed information and materials. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
General Delays: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension for any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.
ACCEPTANCE
Acceptance Periods: Client shall, within 3 business days after receiving each Deliverable, notify Thaiane Assumpcao OÜ in writing of any failure to comply with the specification of the Project Proposal or of any other corrections or non-preferential changes required. Thaiane Assumpcao OÜ shall, within 3 business days of receiving Client’s notification, correct and submit a revised Deliverable to Client. Client shall, within 3 business days of receiving a revised Deliverable, either accept the corrected version or make further changes. If, after 2 corrections by Thaiane Assumpcao OÜ, Client objectively finds the Deliverables are not acceptable, Client may terminate this Agreement subject to the termination clauses of this Agreement. If Client fails to provide acceptance or comments during any Acceptance Period, those Deliverables will be considered accepted. All corrections and changes shall be subject to the terms and conditions of this Agreement.
CLIENT RESPONSIBILITIES
Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Thaiane Assumpcao OÜ, unless otherwise specified in the Project Proposal; (b) Review all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.
PROMOTION
Thaiane Assumpcao OÜ retains the right to describe the Project and Thaiane Assumpcao and Thaiane Assumpcao OÜ’s role in the Project in Thaiane Assumpcao and Thaiane Assumpcao OÜ’s portfolios and websites, in other promotional and marketing materials, in galleries, periodicals and other media or exhibits and, if not expressly objected to, include a link to the other party’s website, for the purposes of recognition of excellence or professional advancement.
CONFIDENTIAL INFORMATION
Client’s "Confidential Information" includes information that Thaiane Assumpcao OÜ should reasonably believe to be confidential. Thaiane Assumpcao OÜ's "Confidential Information" includes the content within any Thaiane Assumpcao OÜ’s Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall be only used as needed to perform this Agreement.
Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
RELATIONSHIP OF THE PARTIES
Thaiane Assumpcao OÜ shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Thaiane Assumpcao OÜ’s Agents. Thaiane Assumpcao OÜ shall be allowed to use third parties as independent contractors in connection with the Services (“Thaiane Assumpcao OÜ’s Agents”). Thaiane Assumpcao OÜ shall remain fully responsible for Thaiane Assumpcao OÜ’s Agents’ compliance with this Agreement.
No Exclusivity. 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 Thaiane Assumpcao OÜ, and Thaiane Assumpcao OÜ shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by Thaiane Assumpcao OÜ.
REPRESENTATIONS AND WARRANTIES
By Client. Client represents and warrants to Thaiane Assumpcao OÜ that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third-Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Thaiane Assumpcao OÜ to use Third Party Materials.
By Thaiane Assumpcao OÜ: Thaiane Assumpcao OÜ represents and warrants to Client that: (a) Thaiane Assumpcao OÜ will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) To the best of Thaiane Assumpcao OÜ’s knowledge, the Deliverables will not violate the rights of any third parties; (c) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Thaiane Assumpcao OÜ shall be void.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, THAIANE ASSUMPCAO OÜ MAKES NO WARRANTIES WHATSOEVER. THAIANE ASSUMPCAO OÜ 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.
INDEMNIFICATION AND LIABILITY
By Client: Client shall indemnify Thaiane Assumpcao OÜ from any and all damages, liabilities, costs, losses, expenses or attorney fees 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. Thaiane Assumpcao OÜ shall promptly notify Client in writing of any third-party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.
By Thaiane Assumpcao OÜ: In the case of a third-party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Thaiane Assumpcao OÜ may at its own expense, replace any infringing content with non-infringing content.
Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF THAIANE ASSUMPCAO OÜ ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF THAIANE ASSUMPCAO OÜ, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES (“THAIANE ASSUMPCAO OÜ 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 AMOUNT STATED IN THE PROJECT PROPOSAL. IN NO EVENT SHALL THAIANE ASSUMPCAO OÜ 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 THAIANE ASSUMPCAO OÜ OR INCURRED AS A RESULT OF THE WORK PERFORMED BY THAIANE ASSUMPCAO OÜ, EVEN IF THAIANE ASSUMPCAO OÜ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THAIANE ASSUMPCAO OÜ SHALL HAVE NO RESPONSIBILITY WHATSOEVER AS TO ANY CHANGES TO THE CONTENT MADE BY A THIRD PARTY. IF THAIANE ASSUMPCAO OÜ’S NAME OR THE NAME OF THAIANE ASSUMPCAO OÜ’S AGENTS IS TO BE ASSOCIATED WITH THE CONTENT, ANY CHANGES TO THE CONTENT MUST BE APPROVED BY THAIANE ASSUMPCAO OÜ.
TERM AND TERMINATION
Term: This Agreement shall begin when Thaiane Assumpcao OÜ sends Client a project confirmation and shall continue until all Services are complete and delivered, or until the Agreement is Terminated.
Termination for Cause: Either party may terminate this agreement at any time, on 10 days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that 10-day period.
Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.
Termination for Convenience: Either party may terminate this agreement at any time and for any reason on 10 days prior written notice to the other party. If Client terminates the Agreement under this section, Thaiane Assumpcao OÜ shall, at Client’s reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
Termination Fees: In the event of termination, Client shall pay Thaiane Assumpcao OÜ for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
Intellectual Property: If Client terminates and on full payment of compensation, Thaiane Assumpcao OÜ grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
Confidential Information: On 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) all rights and obligations regarding Confidential Information shall survive.
RIGHTS TO FINAL DELIVERABLES
License: Thaiane Assumpcao OÜ grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. Client may change, create derivative works, adapt or extract portions of the Final Deliverables as needed.
RIGHTS TO DELIVERABLES OTHER THAN FINAL DELIVERABLES
Client Content: Client Content is the exclusive property of the Client. Client grants Thaiane Assumpcao OÜ a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Thaiane Assumpcao OÜ’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
Preliminary Works: Thaiane Assumpcao OÜ retains all rights in and to all Preliminary Works.
Thaiane Assumpcao OÜ’s Tools: All Thaiane Assumpcao OÜ’s Tools are and shall remain the exclusive property of Thaiane Assumpcao OÜ. Thaiane Assumpcao OÜ grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Thaiane Assumpcao OÜ’s Tools solely to the extent necessary with the Final Deliverables for the Project.
SUPPORT SERVICES
Warranty Period: During the first 7 (seven) days following expiration of this Agreement, Thaiane Assumpcao OÜ shall provide up to 1 hour of Support Services at no additional cost to Client. Support Services means reasonable assistance to correcting any errors or deficiencies. Requests for additional support will be billed on a time and materials basis at Thaiane Assumpcao OÜ's standard rate.
Maintenance Period: After the Warranty Period expires and at Client’s option, Thaiane Assumpcao OÜ will provide Support Services for the following 7 (seven) days for Thaiane Assumpcao OÜ’s hourly fees.
No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Project Proposal.
ENHANCEMENTS
During the Maintenance Period, Client may request that Thaiane Assumpcao OÜ provides enhancements to the Deliverables. Thaiane Assumpcao OÜ shall exercise commercially reasonable efforts to prioritize Thaiane Assumpcao OÜ’s resources to create such enhancements. Client understands Thaiane Assumpcao OÜ may have preexisting obligations that may delay requested enhancements. Any enhancements shall be provided on a time and materials basis at Thaiane Assumpcao OÜ standard rate.
Alterations: Client may make any Alterations necessary to the Final Deliverables. Client shall not be required to give Thaiane Assumpcao OÜ the first opportunity to make the required alterations.
DISPUTE RESOLUTION
Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Litigation: In all other circumstances, the parties specifically consent to the courts located in the State of Estonia. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.
Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
GENERAL
Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. 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.
Notices: All notices under this Agreement shall be given in writing either by: (a) Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or, in the case of email, on confirmation of receipt.
No Assignment: Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.
Governing Law: This Agreement shall be governed by the law of the Estate of Estonia.
Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible, the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.
Complete Agreement: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.