Master Service Agreement

Version 1.0 – Last updated November 02, 2023

This MASTER SERVICE AGREEMENT (“Agreement”) is an agreement between VS THRIVE, a Georgia Sole Proprietorship (“Company”) and the party set forth in the Statement of Work (“Client” or “you” or “your”) incorporated herein by this reference and applies to the purchase of all services ordered by Client (collectively, the “Services”). The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Services.

SIGNING A STATEMENT OF WORK (“SOW’) FOR THE SERVICES CREATES A CONTRACT BETWEEN CLIENT AND COMPANY, AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT. WHEN SIGNING UP FOR SERVICES ONLINE, YOUR PAYMENT OF THE DEPOSIT (AS DEFINED BELOW) CONSTITUTES ACCEPTANCE OF AND YOUR CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THAT YOU HAVE THE ABILITY TO BIND THE ENTITY RECEIVING THE SERVICE.

1. TERM AND TERMINATION. This Agreement shall be effective on the date on which Client accepts the terms and conditions of this Agreement by (i) signing the SOW (Section 2) or (ii) payment of the Deposit (defined in Section 9(f) below) or (ii) acceptance of this Agreement on the Company’s website or otherwise. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within seven (7) days of receipt of the notice. This Agreement may be terminated by Company immediately, and all amounts due to Company for services rendered pursuant to this Agreement shall become due and payable (i) if Client fails to pay any fees hereunder; or (ii) if Client fails to cooperate with Company or hinders Company’s ability to perform the Services hereunder.

2. STATEMENT OF WORK. While this agreement defines the terms, responsibilities and duties of Client and Client, the SOW defines the project and/or service specific scope and the boundaries. SOW may include, but is not limited to, Service/project requirement, work scope, timeline, milestones, agreed hourly rate and/or other payment details, estimates for effort, Client and/or Company roles and/or responsibilities and place of payment.

3. SCOPE OF WORK. Company will provide the Services, as defined in SOW (Section 2) in a commercially reasonable manner as requested by the Client. Company will take commercially reasonable steps to keep Client informed of progress and to respond to Client’s inquiries in a timely fashion.

4. WORK HOURS. Company has no set working hours if not agreed and stated in the SOW.Work and/or hours done in order to perform Service will be documented and included as appendix to invoices, as defined in Section 9(c).

5. CLIENT’S DUTIES. Client agrees to cooperate with Company, to abide by this Agreement, to pay Company’s bills on time and to keep Company advised of Client’s current address, telephone number, and e-mail. Client shall also immediately notify Company of any of the following: (i) any change of the Client’s name; (ii) any change in the type of entity of Client; (iii) any change in management of the Client; and (iv) any sale of all or substantially all of the Client’s assets or any merger or other reorganization of Client. Client agrees to perform all tasks assigned to Client by the Company, and to provide all assistance and cooperation to Company in order to complete timely and efficiently the Services, including without limitation providing reasonable and appropriate access to Client’s computer systems, software and source code necessary for Company to perform the Services. Client acknowledges and agrees that failure to provide Company complete access to any of the aforementioned systems may increase the cost of the Services.

6. CONFIDENTIALITY. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, financial information and anything else that is marked as confidential. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for five (5) years from the termination of this Agreement.

7. FORCE MAJEURE. Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.

8. RELATIONSHIP OF PARTIES. Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Client does not undertake by this Agreement or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Client in any respect, any other provisions of this Agreement notwithstanding.

9. SERVICE FEES AND BILLING PRACTICES.

a. Estimates. Client acknowledges and agrees that any estimate for the Services provided to Client by Company is an estimate only, and the actual cost for the Services may be less or more. Client acknowledges that Company has made no promises about the total amount of fees to be charged to Client under this Agreement, and the total amount of fees will be calculated in accordance with paragraph 7(b) below. It is the Client’s responsibility to review the invoices sent by the Company to determine whether the Services will exceed any estimate given by the Company. No refunds will be given, and Client is obligated to pay for all time spent by the Company in providing Services to Client.

b. Fees. Client agrees to pay by the hour at Company’s negotiated rate as set forth in the SOW for all time spent on the Services by Company, whether or not any particular project is completed prior to the termination of this Agreement. The hourly rate is subject to change upon 30 days written notice to Client. If Client declines to pay any increased rates, Company will have the right to terminate this Agreement. Fees and payment time (hourly rate, fixed price) can be amended in the SOW and need to be agreed on by all parties.

c. Billing Practices. Company reserves the right to enforce the following billing policies: (i) the invoice will include time spent on research, documentation, design, alternate concepts, prototyping, production, animation, copywriting, system administration and website and software development, including but not limited to feature creation, testing, browser and platform compatibility, refactoring, migrations, server provisioning and configuration and any additional time required by Company arising from abnormal usage patterns, new environments and any other bug, problem, defect, malfunction or deficiency which causes an incorrect functioning or non-functioning of any Service, or any portion thereof; (ii) the invoice will include time spent by Company communicating about the Services, including without limitation meetings with Client and other parties and service providers; (iii) time is charged in minimum increments of one-quarter (.25) of an hour; and (iv) the minimum time charged for any particular activity will be one-quarter of an hour, rounded off for each particular activity to the nearest one-quarter of an hour. Company may delegate to other independent contractors or employees the Services to be provided to Client. Any such delegation will not affect Client’s obligation to pay Company fees as provided herein.

d. Costs and Other Charges. Company may incur various costs and expenses in connection with the Services. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fee. Costs may include, but are not limited to, hosting subscriptions, bandwidth charges, digital storage space, domain name registrations and renewals, SSL certificates, stock photography and third-party application fees and/or subscriptions.

e. Travel Expenses and Travel Time Costs. Company may incur various travel expenses for services performed on Client site, when requested to do so by Client. Client agrees to pay for all costs, disbursements and expenses in addition to the hourly fee. In case of cancellation and/or delay, time spent outside the home of Company, or the office of Client will count as said travel time. Any travel undertaken by Company needs prior written approval by Client. This approval can be part of the SOW (Section 2). Travel time will be invoiced, if not agreed otherwise, at 60% of the agreed upon hourly rate. Other expenses will be documented and billed including a 10% markup. Other expenses may include, but are not limited to, plane tickets, train tickets, rental cars, parking costs, taxi, ridesharing and hotel costs. Food and beverages will be billed up to, if not agreed upon otherwise, $65 per day.

f. Deposit and Payments. For new Clients an initial deposit is required in the amount specified within the SOW (the “Deposit”). The Deposit will be applied to the first invoice and must be received by Company prior to the performance of any Service. If, at the termination of this Agreement, the amount remaining owing by Client for Company fees is less than the amount of the Deposit, the difference will be refunded to Client upon request, or held (without interest) to be credited to future work. If Company fees and costs exceed the amount of the Deposit, Client will pay any additional balance due on receipt of Company’s invoice, as defined in Section 9(g).

g. Invoices. Company invoices Clients for its work once per month. Each such billing cycle is referred to as a 30-day billing period, even though the period may be less or more than 30 days. Company will e-mail Client a 30-day invoice for the fees and costs incurred during the preceding 30-day billing period. Each invoice is payable within 15 calendar days of its e-mailing date. Client is obligated to update its e-mail address with Company. Sending an e-mail to a Client’s e-mail address on the Company’s records, with no bounce-back, is conclusive proof of simultaneous actual receipt by Client. The invoices shall include the amount, rate, basis of calculation or other method of determination of the fees and costs, which costs will be clearly identified by item and amount. At Company’s discretion, it may require an advance from Client, to cover billed items representing services performed by Company, and any costs advanced or otherwise chargeable to the Client’s account. The amount and frequency of such advances shall be negotiated between Client and Company, but should approximately equal the estimated fee for the hours Company would expect to bill, or amounts Company expects to charge for services rendered for the relevant period. As Company bills Client for services rendered, the advance may be debited for the amount billed for actual services rendered.

h. Place of Payments. Payments may be submitted electronically (Revolut Account), per bank transfer (ACH transfer), credit card, money order or check. Fees that incur through payment gateways, payment providers and/or banks must be paid by Client. Certain payment places and/or methods, where direct payment of incurred fees is not possible by Client will incur an additional payment fee upon billing. Place of payments and/or payment fees need to be agreed upon and signed in the SOW.

i. Taxes. Client will be responsible for all applicable taxes (if any) (including sales, use, excise, value added, and gross receipts but not including taxes based on Company’s income,revenue or capital), import duties and fees and charges of any kind levied or imposed by any federal, provincial, state or local governmental entity for Deliverables or Services provided under the SOW. Client agrees that if any of the foregoing taxes are applicable and such taxes or related charges are paid by Company, Client will reimburse Company for the amount paid by Company.

j. Non-Payment of Fees. It is expressly acknowledged that any amount billed to the Client is due within 15 calendar days of the date on which the statement or invoice is e-mailed to Client. To the extent payment is not made by the end of such 15-day period, (i) the Client’s outstanding balance shall immediately begin accruing interest at the rate of one half percent (1.5%) per 30-day billing period, for each and every month there exists an outstanding balance and (ii) Company may cease providing Services and may, in its discretion, terminate this Agreement. Additionally, in Company’s sole discretion, Company may submit any outstanding overdue balance to a collection agency if it remains unpaid for over 60 days. The prevailing party in any action or proceeding to enforce any provision of this Agreement will be awarded reasonable attorney fees and costs incurred in that action or proceeding or in efforts to negotiate the matter.

10. DESIGN OF SERVICES.

a. Design. Company will perform the Services in a commercially reasonable manner with respect to design direction, branding and all creative and technical services. Client acknowledges and agrees that Company has an expertise in providing the Services, and will perform the Services in a manner it deems in the best interests of Client, as determined by it in its sole discretion. If the Client disagrees with Company regarding certain Services, Company may either choose to perform the Services as per the Client’s request or terminate this Agreement if Company determines that Client’s request cannot be accomplished successfully. Company is not responsible or liable for any failures or consequences related to performing the Services as requested by Client, and Client agrees that it is responsible for all charges incurred by Company in providing any Service to Client.

b. Refused Content. Company may, in its sole discretion, refuse to perform any Service or refuse to include any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Client to Company (the “Client Content”) in any Service.

11. OWNERSHIP.

a. Outside Content. Client acknowledges, understands and agrees that Company may use its own and/or may purchase third party licenses for products or services that are necessary for Company to perform the Services. Such products or services may include, but are not limited to open source code, illustrations, precompiled applications, music, photography, video or any other copyrighted work (“Outside Content”) which Company deems necessary to purchase or utilize on behalf of Client in the performance of the Services. Client further acknowledges and understands that any Outside Content used to complete the Services is owned by Company and/or such third parties and cannot be transferred to Client and is hereby specifically not transferred to Client and shall remain the property of Company and/or such third parties. Outside Content which is owned and/or purchased by Company may be used in the design and/or development of other projects separate from Client, regardless of whether such other project is for a Client in competition with Client.

b. Custom Programming. Client and Company agree that upon payment in full of the fees associated with the Services, Client shall own a worldwide right, title, and interest in and to the Services (including its source code and documentation), other than components of the Services which are Outside Content or Code Content (as defined below) (the “Custom Programming”) solely for Client’s own internal business purposes. Client shall retain a worldwide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Programming. Notwithstanding the foregoing, Client specifically agrees that it will not take, or allow any unauthorized third party to take, any steps to commercially exploit, sell or market the Custom Programming, or any other tangible or intangible asset or intellectual property developed or derived therefrom, in any manner. Any decompilation or reverse engineering of the Custom Programming is prohibited without the express written consent of Company.

c. Code Content. Client and Company also agree that the design and development of the Services may include source code, documentation, and/or application programs that were previously written or developed by Company and modified to meet Client’s specific requirements (the “Code Content”). Company shall own all worldwide right, title, and interest in and to the Code Content, but shall provide Client (upon payment in full of the fees associated with the design and development of the Services) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content solely as provided by the Company in a Service. Nothing in this paragraph gives the Client the right to decompile or reverse engineer the Code Content, use the Code Content in any other way except as used in the Service, or license or sell any Code Content.

d. Attribution. As an integral part of the consideration for the Agreement, Company and its subcontractors retain the right to display graphics and other web design elements of the Services as examples of their work in their respective portfolios even if such display involves the name of the Client or other of its trademarked assets.

12. INDEMNIFICATION.

a. Company Indemnity. In performing services under this Agreement, Company agrees not to knowingly design, develop, or provide to Client any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If Company becomes aware of any such possible infringement in the course of performing any work hereunder, Company shall immediately notify Client in writing. Company agrees to indemnify, defend, and hold Client, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to the Agreement, other than Client’s responsibilities and Client Content to the extent the infringement is the fault of the Company. Company’s total liability under this Agreement shall not exceed the amount paid by Client under this Agreement.

b. Client Indemnity. Client shall indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, subcontractors, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from any Client Content, or a claim that any element of any Client Content furnished to Company for inclusion in the Services infringes the intellectual property rights of a third party.

13. REPRESENTATIONS AND WARRANTIES.

a. Company Representations. Company makes the following representations and warranties for the benefit of Client:

i. No Conflict. Company represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Company under this Agreement. Client understands that Company may be currently working on one or more similar projects for other Clients. Provided that those projects do not interfere or conflict with Company’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.

ii. Disclaimer of All Other Warranties. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH CLIENT. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM.

iii. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY CLIENT HEREUNDER. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.

b. Client Representations. Client makes the following representations and warranties for the benefit of Company:

i. Client Content. Client represents to Company and unconditionally guarantees that any elements of the Client Content furnished to Company for inclusion in the Services are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Client.

ii. Compliance with Laws. From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Client’s exercise of Internet electronic commerce.

14. NOTICE. Any notice required to be given under this Agreement shall be in writing and delivered (i) personally to the other designated party at the address provided to the other party mailed by certified, registered or express mail, return receipt requested or by Federal Express or (ii) by electronic mail or facsimile. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.

15. GOVERNING LAW. This Agreement shall be governed in accordance with the laws of the State of Georgia, without giving effect to principles of conflicts of laws.

16. VENUE AND JURISDICTION. The parties hereto agree that all actions or proceedings arising in connection with this Agreement, whether arising out of contractual, tort or otherwise, shall be tried and litigated exclusively in the State courts located in the County of Clarke, State of Georgia (300 East Washington Street, Suite 425, Athens, GA 30601), or the federal courts sitting in Athens (115 E Hancock Ave, Athens, GA 30601), within the Middle Judicial District of the State of Georgia. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. Each party hereby waives any right it may have to object to venue with respect to any proceeding brought in accordance with this paragraph. Each party stipulates and expressly submits to the personal jurisdiction of the State courts located in the County of Clarke, State of Georgia, and federal courts within the Middle District of Georgia sitting in Athens, Georgia for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement.

17. AGREEMENT BINDING ON SUCCESSORS. The provisions of the Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.

18. ASSIGNABILITY. Client may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company. Such approval will not be unreasonably withheld. Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.

19. SEVERABILITY. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

20. WAIVER. No waiver by either party of any default of any provision of this Agreement shall be deemed a waiver of any prior or subsequent default of such provision or any other provision of this Agreement.

21. INTEGRATION. This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.

22. NO INFERENCE AGAINST AUTHOR. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.

23. READ AND UNDERSTOOD. Each party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.

24. MODIFICATION TO TERMS. Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Company’s website. You are responsible for regularly reviewing this Agreement. Continued use of the Company’s Services after any such changes shall constitute your consent to such changes.