Master Services Agreement Page MSA-1
MASTER SERVICES AGREEMENT
Urban Insight uses the industry-standard Bureau of Digital Standard Form of Agreement for Digital Services, version 2.0.
This Master Services Agreement is effective as of the date signed and is between Urban Insight, Inc. (“Agency” or “we”) and City of Foster City (“Client” or “you”). Capitalized terms in this agreement that are not otherwise defined have the meanings given in Section 13.
1. Statements of Work.
Agency shall provide Client the services and Deliverables described in this proposal in the sections titled, “Statement of Work” or any document that references this agreement details the fees for such work, and is signed by the parties (each a 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.
2. Services; Fees; Payments.
Client shall pay all invoiced fees and approved expenses as provided in this proposal in the section titled “Project Financials” or “Budget” within 25 days of receipt. If Client disputes any amount invoiced, Client must give Agency written notice describing the dispute within 20 days of receipt of the invoice. Client may not dispute invoices after the invoice due date. Services provided outside the scope of an SOW will be billed at Agency’s applicable hourly rates.
We estimate the total fee for this project to the amount identified in the SOW in the section titled “Project Financials” (the “Estimate”). You will be invoiced monthly on the last day of each month for all work completed during the month. The Estimate is not a guarantee that we can complete the work described in this SOW for that amount, and all work will be performed and invoiced on a time and materials basis.
The fee does not include any expenses or other costs that may be required to complete the SOW. Examples of expenses include licensing fees, stock or original photography, font or media licensing, online services, hosting, and similar costs. Agency will obtain your consent before incurring costs on your behalf. Once approved, Agency may advance such costs on your behalf and include the amount on your invoice. Alternatively, Agency may require that you advance such costs before they are incurred or that you contract directly with the vendor.
Past due invoices will be assessed a $40 late fee and accrue interest of 1.0% per month.
3. Client Obligations.
Master Services Agreement Page MSA-2
In addition to any assumptions or obligations in an SOW, Client shall in a timely manner (a) provide Client Materials necessary for Agency’s performance of its services; (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 access necessary for Agency to perform its services; and (e) otherwise comply with its obligations under this agreement. (“Client Obligations”).
4. Acceptance.
Client shall accept or reject each Deliverable in writing within five days of receipt (the “Approval Period”). Deliverables may only be rejected for materially failing to conform to Specifications.
Notice of rejection must be in writing and specify the reasons for rejection. If Client does not accept or reject a Deliverable within the Approval Period, it is deemed accepted. Upon receipt of a timely rejection notice, Agency will promptly correct any non-conformities at Agency’s expense.
5. Termination of SOWs.
(a) Termination by Client. Client may terminate an SOW on written notice to Agency (i) if Agency fails to cure a material breach of this agreement within 15 days of receiving written notice of the breach from Client; or (ii) for any other reason. If Client terminates other than as a result of Agency’s uncured material breach, Client shall also pay the Early Termination Fee.
(b) Termination by Agency. Agency may terminate an SOW on written notice to Client if Client fails to cure a material breach of this agreement within 15 days of receiving written notice of the breach from Agency.
(c) Effect of Termination. Termination does not relieve Client of its obligation to pay fees and approved expenses incurred through the termination date. After Agency receives all payments due through termination, Agency shall provide completed Deliverables to Client and return all Confidential Information.
(d) Work Stoppage. If Agency has grounds for termination, Agency may suspend its work and terminate any applicable hosting (without liability to Client) until Client cures the grounds for termination and pays all amounts due. Agency may require Client to sign an amended SOW adjusting the fees and schedule as reasonably required by Agency to compensate for Client’s breach. Stopping work does not limit Agency’s right to terminate.
6. Confidential Information.
Each party (the “Discloser”) may disclose Confidential Information to the other party (the “Recipient”) in connection with this agreement. The Recipient agrees to (a) maintain the Confidential Information in confidence; (b) protect the Confidential Information with a reasonable degree of care, including employing industry-standard security procedures to prevent unauthorized disclosure of Confidential Information; (c) not use the Confidential Information except in the performance of its obligations under this agreement; and (d) disclose the Master Services Agreement Page MSA-3
Confidential Information only to those of its employees and agents who have a need to know the Confidential Information and who are bound by agreement or law to maintain the confidentiality of the information.
7. Intellectual Property.
Subject to Agency’s receipt of payment under the SOW, Agency assigns to Client all of Agency’s rights in the Deliverables (other than Agency Tools incorporated in the Deliverables).
Upon assignment, Agency grants Client a non-exclusive, royalty-free, worldwide license to use, modify, display, and otherwise take full lawful advantage of the Agency Tools in connection with the Deliverables. Agency shall provide Client with a copy of any licenses applicable to any Third-Party Materials included in the Deliverables (the “Third-Party Licenses”). Client shall comply with the terms of such licenses. Client grants Agency a license to use the Client Materials as contemplated by this agreement.
8. Portfolio Rights.
Upon Client’s publication of any Deliverable, Agency may publicize depictions of the Deliverables, link to any online content containing the Deliverables, and describe its role in creating of the Deliverables. Agency may (i) publicize the fact that Client is Agency’s client; (ii) describe the nature of its work for the Client; and (iii) subject to any reasonable restrictions imposed by Client, utilize Client’s trade name(s) and trademark(s) in connection with its publicity.
9. Warranties.
(a) Mutual Warranties. Each party warrants that (i) it is authorized to enter into and perform this agreement; (ii) entering into and performing this agreement will not conflict with any other agreement to which the party is bound; and (iii) it will perform under this agreement in accordance with applicable law.
(b) Agency Warranties. Agency warrants that (i) it will perform its services in a professional manner and in accordance with industry standards; (ii) it will assign personnel who are reasonably experienced and qualified to perform its services; (iii) upon delivery and for a period of 30 days thereafter (the “Warranty Period”), the Deliverables will materially conform to the Specifications (the “Specifications Warranty”); and (iv) to its knowledge, the Deliverables will not, if used by Client as contemplated by the SOW and in accordance with any Third-Party Licenses, infringe any third-party intellectual property rights.
(c) Client Warranties. Client warrants that, to its knowledge, the Client Materials will not, if used by Agency as contemplated by the SOW, infringe any third-party intellectual property rights.
(d) Disclaimer. Except as provided in this Section, each party’s performance under this agreement is provided “AS IS” and without other warranty. No warranty is given Master Services Agreement Page MSA-4
regarding Third-Party Materials or third-party services. Agency does not warrant that Client’s website will comply with the Americans With Disabilities Act. (e) Certain Remedies. As Client’s exclusive remedy for a breach of the Specifications Warranty, provided Client notifies Agency of the breach within 30 days following expiration of the Warranty Period, Agency will promptly revise nonconforming Deliverables to materially conform to Specifications at Agency’s expense.
10. Indemnity & Limit on Liability.
(a) Indemnity. Subject to Section 10(c), Agency shall indemnify and defend Client and its employees, officers, directors, shareholders, members, and managers (collectively, the “Indemnitees”) from any damages, expenses, fees, fines, penalties, expenses (including reasonable attorney’s fees) and costs incurred by the Indemnitees in connection with any third-party claim arising out of Agency’s breach of this agreement, negligence, or intentional wrongdoing (a “Claim”). As a condition to Agency’s indemnification obligation, the Indemnitees shall give Agency prompt written notice of any Claim or potential Claim.
In any defense, (i) Agency has the sole right to defend and settle the Claim using counsel of its choosing; and (ii) the Indemnitees shall reasonably cooperate with Agency in the defense and settlement of the Claim.
(b) Exclusions. Agency is not liable under Section 10(a) to the extent that Claims result from: (i) the negligent or willful acts of an Indemnitee; (ii) Agency’s compliance with the instructions of Client; or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by (or on behalf of) Client. (c) Limit on Liability. Each party’s maximum liability in any action relating to the subject of this agreement is limited to the total fees payable by Client pursuant to the SOW that is the subject of the dispute. This limitation does not apply to damages arising from a party’s gross negligence or intentional wrongdoing, the Conversion Fee, or amounts payable under Section 14(e). Neither party is liable for lost profits or other consequential damages, even if foreseeable and regardless of the form of action.
11. Non-Solicitation.
The parties shall not, while services are being performed by Agency and for one year after the last day on which services were provided, solicit, induce, or recruit, directly or indirectly, for itself or for any other party, the other party’s employees. The parties agree that damages resulting from a breach of this Section 11 would be difficult to quantify, but that a reasonable estimate of such damages is 50% of the total compensation paid to the subject employee in the twelve months preceding the breach (the “Conversion Fee”). As liquidated damages for breach of this provision, the breaching party shall pay the Conversion Fee to the other party.
12. Governing Law; Jurisdiction; Venue.
California law governs this agreement, exclusive of its conflict of laws principles. The state and federal courts of Los Angeles, California are the exclusive venue for resolving any disputes Master Services Agreement Page MSA-5
under this agreement. The parties consent to the personal jurisdiction of such courts, and waive defenses concerning venue and convenience of forum.
13. Definitions.
The following terms have the meanings given:
“Agency Tools” means Agency’s intellectual property (including its designs, methods, software, and trade secrets) that either preexist this agreement or are developed by Agency other than in providing services for Client under this agreement. Agency Tools includes any improvements that are not uniquely applicable to the Deliverables.
“Client Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Client to be used by Agency in connection with the preparation of or incorporated into the Deliverables. “Confidential Information” means information that, either, is identified as confidential upon disclosure, or that the Recipient should understand to be confidential under the circumstances; provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (iii) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser’s Confidential Information. “Deliverables” means the final versions of the materials produced and delivered by Agency pursuant to this agreement. Deliverables may include Client Materials, Agency Tools, and Third- Party Materials.
“Early Termination Fee” means an amount equal to 25% of the fees that would otherwise have been charged for the canceled portion of the project.
“Specifications” are functional or technical specifications (such as WCAG 2.1) for work described in an SOW or that have been otherwise agreed to in writing by Client and Agency. “Third-Party Materials” means materials belonging to third parties that are incorporated into the Deliverables, including without limitation open source software, fonts, and stock images.
14. Miscellaneous.
Master Services Agreement Page MSA-6
(a) Taxes. Agency shall pay all taxes on its income and employment taxes for its personnel.
Client shall pay any sales, use and value-added taxes.
(b) Assignment. This Agreement is not transferable or assignable, except that rights to payment may be assigned, and except that either party may assign this Agreement to a person or entity who acquires all or substantially all of the assets or business of a party pertaining to this Agreement.
(c) Insurance. While providing services, Agency shall maintain in effect policies of commercial general liability insurance with limits of $1,000,000 per occurrence and professional liability (errors and omissions) insurance with limits of at least $500,000 per occurrence. Upon written request, Agency will provide Client with proof of the insurance coverage required by this section.
(d) Relationship of the Parties. Agency is an independent contractor and not Client’s partner. The parties are not engaged in a joint venture. Agency’s employees are not to be considered Client’s employees for any purpose. Agency is solely responsible for the means and manner of performing the services.
(e) Attorney’s Fees. The prevailing party in any dispute regarding the subject of this agreement is entitled to recover its reasonable attorney’s fees, expert’s fees, and costs. (f) This Agreement. This agreement (including all SOWs) is the entire agreement of the parties with respect to its subject. All prior and contemporaneous agreements are superseded. This agreement may only be amended by a writing signed by both parties.
This Agreement may be signed in counterparts. Each counterpart constitutes an original and all together constitute a single agreement. If any term of this Agreement is determined to be unenforceable, the remainder of this Agreement will not be affected.
This Agreement was negotiated by sophisticated parties and will not be construed in favor of or against either party.
(g) Client’s engagement of Agency will not cause Urban Insight to be treated as a “data processor” or “data controller” under GDPR.
15. Optional Tasks.
If the SOW includes optional tasks, please indicate which, if any, optional tasks Client intends to be made part of the SOW. If no option is selected, no optional tasks will be made part of the SOW.
[ ] Do not include any optional tasks.
[ ] Include the following optional task(s) in the SOW:
Please list optional task numbers here.
Master Services Agreement Page MSA-7
By signing below, the parties accept this agreement.
For City of Foster City
Patrick Sullivan, Mayor
Date
Attest:
Priscilla Schaus, City Clerk
Approved as to Form:
Benjamin Stock, City Attorney
For Urban Insight, Inc.
Signature
Date
Mark Etter
Chief Operations Officer
Urban Insight, Inc.
3530 Wilshire Blvd., Suite 1285
Los Angeles, CA 90010
Email: [email protected]
Telephone: 213-792-2000 x102