MASTER SERVICES AGREEMENT
THIS AGREEMENT ("Agreement") governs the relationship between the client ("Customer"), on behalf of itself and its affiliates and TJConsulting Media Ltd. ("TJConsulting Media Ltd"). We reserve the right to change the terms of this Agreement or to impose new conditions on your use of our services, from time to time, in which case we will post the revised Master Services Agreement on this website. By continuing to use our services after we post any such changes, you accept the Master Services Agreement, as modified. Customer hereby engages TJConsulting Media Ltd to perform various projects from time to time, according to the terms of this Agreement and its Schedules, as follows: NOW, THEREFORE, Customer and TJConsulting Media Ltd mutually agree as follows:
- Schedule - Shall mean and refer to documents referencing this Agreement and specifying work to be accomplished by TJConsulting Media Ltd and to be paid for by Customer. Schedules shall, once executed, become a part of this Agreement and they shall define the scope of work to be accomplished in conjunction with a specific project and provide a fee for accomplishment of this work. Project details concerning methodologies, deliverables and project plans shall be provided in the project Proposal (if applicable), which shall be attached to the corresponding Schedule.
- Proposal - Shall mean and refer to the project Proposal, which shall provide specific project details and shall be prepared and submitted by TJConsulting Media Ltd and accepted by Customer. The Proposal shall be attached to the appropriate Schedule and shall provide specific project methodologies, deliverables and project plans. The Proposal shall be attached to an appropriate Schedule and shall be made part of this Agreement upon acceptance by Customer.
Customer hereby retains TJConsulting Media Ltd and TJConsulting Media Ltd hereby agrees to perform certain professional services in support of designated projects as directed by Customer. TJConsulting Media Ltd shall devote sufficient time and effort and shall allocate sufficient personnel and resources to the designated project as may be required for successful completion thereof. TJConsulting Media Ltd shall conduct and conclude project activities in a professional manner. Unless otherwise agreed to by the parties, all work will be performed at TJConsulting Media Ltd facilities.
TERM AND TERMINATION
The term of this Agreement ("Term") shall continue in full force and effect until all projects are completed. This Agreement may be terminated by either party, without cause, upon thirty (30) calendar days' written notice provided that any such termination shall only be effective as to an ongoing assignment specified in a Schedule when the minimum term for such assignment specified in a Schedule has been completed. In the event of termination by Customer other than for a material breach of this Agreement by TJConsulting Media Ltd, and in the event of termination by TJConsulting Media Ltd, because of Customer's breach of this Agreement, TJConsulting Media Ltd shall be entitled to receive payment for all services performed up to the effective date of termination at the labour rates set for in the Schedule. In the case of a Schedule providing for services at a fixed price, TJConsulting Media Ltd shall be entitled to receive payment of a percentage of the agreed aggregate fixed price proportionate to the amount of work completed. Customer shall also reimburse TJConsulting Media Ltd for any additional travel, living and relocation expenses incurred by TJConsulting Media Ltd as a result of such early termination including, without limitation, any costs associated with breaking apartment leases which have been approved in writing by Customer for TJConsulting Media Ltd's employees assigned to Customer projects.
TJConsulting Media Ltd shall be compensated for all services performed within the scope of this Agreement at the prices or rates set forth in the Schedules and Proposals attached hereto. The prices stated for services include all taxes, except that Customer shall pay any state and local sales or use tax imposed thereon. Customer shall not pay for any services outside the scope of this Agreement unless Customer has authorised these additional services in advance.
CERTAIN OUT-OF-POCKET EXPENSES
Except as set forth in the Schedules and Proposals attached hereto, prices quoted for services to be performed on a time and materials basis do not include TJConsulting Media Ltd's out-of-pocket costs for travel (air and cab fare, lodging, auto rental, per diem, etc.), overnight courier and telephone, etc. Such costs shall be billed to Customer at TJConsulting Media Ltd's actual cost. Except as set forth in the Schedules and Proposals attached hereto, prices quoted for services to be performed on a fixed price basis include all of TJConsulting Media Ltd's out-of-pocket costs for travel, overnight courier and telephone.
INVOICES AND PAYMENT
TJConsulting Media Ltd shall submit monthly invoices to Customer for services rendered hereunder on a time and material basis. Services rendered hereunder on a fixed price basis shall be invoiced as provided in the payment schedule set forth in the Proposal. Payment shall be due within 14 days. Any payment not made when due shall be subject to a service charge at the rate of one and one-half percent (1.5%) per month.
Customer acknowledges that personnel to be provided by TJConsulting Media Ltd represent a significant investment in recruitment and training, and that the loss of such personnel would be detrimental to TJConsulting Media Ltd's current and future business and profits. In consideration of the foregoing, Customer agrees that for the term of this Agreement and for a period of one (1) year after this termination, Customer will not directly or indirectly:
- Recruit, hire, engage or attempt to recruit, hire, engage or discuss employment with, or otherwise utilise the services in any capacity of any person who shall have been an employee, agent or consultant to TJConsulting Media Ltd at any time during the term of this Agreement: or
- Induce any person who shall have been an employee, agent of or consultant to TJConsulting Media Ltd at any time during their term of this Agreement to terminate his or her relationship with TJConsulting Media Ltd or any related company or introduce such person to any potential employer. These same obligations shall be binding upon TJConsulting Media Ltd with respect to any person who is an employee, agent of or consultant to Customer at any time during the term of this Agreement.
PROPRIETARY RIGHTS TO SOFTWARE
Custom Work Product Defined - "Custom Work Product" means the resulting software (soft copy of code) created by TJConsulting Media Ltd after the effective date of this Agreement on behalf of Customer and in furtherance of attached Proposals.
Ownership of Custom Work Product - Customer shall own all right, title and interest to all Custom Work Product. TJConsulting Media Ltd expressly acknowledges and agrees that all such Custom Work Product constitutes "work made for hire" under the Federal copyright laws (17U.S.C., SEC 101) owned exclusively by Customer and, alternatively, hereby irrevocably assigns all ownership or other rights it might have in Custom Work Product to Customer. Upon termination hereof, TJConsulting Media Ltd shall turn over to Customer or destroy all copies of Custom Work Product.
- Acknowledgement of Confidentiality - Each party hereby acknowledges that it may be exposed to confidential and propriety information of the other party including, without limitation, Custom Work Product, embedded software (if any) and other technical information (including functional and technical specifications, designs, drawings, analysis, research, processes, computer programs, methods, ideas, "know how" and the like), business information (sales and marketing research, materials, plans, accounting and financial information, personnel records and the like) and other information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information does not include (i) information already known or independently developed by the recipient, or (ii) information in the public domain through no wrongful act of the recipient, or (iii) information received by the recipient from a third party who was free to disclose it.
- Covenant Not to Disclose - With respect to the other party's Confidential Information, the recipient hereby agrees that during the Term and at all times thereafter it shall not use, commercialise or disclose such Confidential Information to any person or entity, except to its own employees having a "need to know" (and who are themselves bound by similar nondisclosure restrictions), and to such other recipients as the other party may approve in writing, provided, that all such recipients shall have first executed a confidentiality agreement in a form acceptable to the owner of such information. Neither TJConsulting Media Ltd nor any recipient may alter or remove from any software or associated documentation owned or provided by Customer any proprietary, copyright, trademark or trade safeguarding the other party's Confidential Information as it uses in safeguarding its own comparable Confidential Information.
The parties acknowledge that violation by Customer of the provisions of Section 7, by TJConsulting Media Ltd of the provisions of Section 8 ("Proprietary Rights to Software") or by either party of the provisions of Section 9 ("Confidential Information") would cause irreparable harm to the non-breaching party which is not adequately compensable by monetary damages. In addition to other relief, it is agreed that the non-breaching party shall be entitled to seek injunctive relief from a court of competent jurisdiction to prevent any actual or threatened violation of such provisions.
Good and Workmanlike Manner - TJConsulting Media Ltd represents and warrants to Customer that all services provided hereunder will be performed to the best of its ability in a good and workmanlike manner.
Non-Infringement Warranty - TJConsulting Media Ltd represents and warrants to Customer that the Custom Work Product and any embedded software, when properly used as contemplated herein, will not infringe or misappropriate any United States or England & Wales copyright, trademark, patent, or other trade secrets of any third persons. Upon being notified of such a claim, TJConsulting Media Ltd shall at its cost (i) defend through litigation or obtain through negotiation the right of Customer to continue using the Customer Work Product, (ii) rework the Custom Work Product so as to make it non-infringing while preserving the original functionality, or (iii) replace the Custom Work Product with functionally equivalent software. If Customer determines that none of the foregoing alternatives provide an adequate remedy, Customer may terminate all or any part of this Agreement and, in addition to other relief, recover amount paid for such Custom Work Product.
Optional Ongoing Maintenance - If required by Customer, TJConsulting Media Ltd shall provide additional ongoing maintenance services pursuant to a separate maintenance agreement in order to fix future problems and enhance the Custom Work Product. The fees for such maintenance services shall be negotiated between the parties.
LIMITATION OF LIABILITY
- Disclaimer - EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TJCONSULTING MEDIA LTD DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED HEREUNDER, OR THE CUSTOM WORK PRODUCT, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL TJCONSULTING MEDIA LTD BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Design Specifications - Customer understand that the services to be provided by TJConsulting Media Ltd are program coding and/or unit and system testing and/or implementation, all based upon design specifications supplied by Customer. TJConsulting Media Ltd is not responsible for the design specifications and makes no representation or warranty as to their adequacy or suitability for any particular purpose
- Total Liability - TJConsulting Media Ltd's liability hereunder for damages for any claim arising out of the Agreement or any services performed hereunder shall not exceed the total amount paid to TJConsulting Media Ltd under the applicable Schedule.
Notices sent to either party shall be effective upon delivery when delivered in person or transmitted by fax machine ("fax") or email, and shall be effective one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the address on file at TJConsulting Media Ltd, or at such other address as the parties may from time to time give notice: TJConsulting Media Ltd Address, 10 St Augustines Road, Wisbech, Cambridgeshire, PE13 3AH A fax or email of this Agreement and notices generated in good form by a fax or email (as well as a photocopy thereof) shall be treated as "original" documents admissible into evidence unless a document's authenticity is genuinely placed in question.
COOPERATION WITH OTHER CONTRACTORS
TJConsulting Media Ltd shall cooperate with other contractors working on projects for Customer as may reasonably be required in order to execute efficiently projects for Customer.
Either party may be declared in default of this Agreement if it breaches any material provision hereof and fails within thirty (30) days after receipt of written notice of default to correct such default or to commence corrective action reasonably acceptable to the other party and proceed with due diligence to completion. Either party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the party and is not dismissed within 30 days.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
Except for certain emergency judicial relief authorised under Section 10 ("Injunctive Relief") which may be brought at any time, the parties agree that all disputes between them shall first be subject to the procedures under Section 15 ("Default") and then shall be submitted for informal resolution to Customer's chief operating officer. If the parties are still unable to reconcile their differences, either party may then take the dispute to arbitration. Any and all disputes arising out of or relating to this Agreement which have not been resolved pursuant to the above informal resolution procedure shall be finally settled by arbitration conducted in England, UK in accordance with the current arbitration rules and laws of England. Judgement upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
INDEPENDENT CONTRACTORS STATUS
It is understood and agreed that TJConsulting Media Ltd is retained only for the purpose and to the extent set forth in this Agreement, and that the relationship of TJConsulting Media Ltd and TJConsulting Media Ltd's employees, agents or subcontractors to Customer during the term of this Agreement shall be that of independent contractors. TJConsulting Media Ltd shall have the sole and exclusive control over its employees or subcontractors who provide services to Customer hereunder, and over the labour and employee relations policies and policies relating to wages, hours, working conditions or other conditions of its employees, agents or subcontractors. TJConsulting Media Ltd shall have the sole and exclusive right to hire, transfer, suspend, layoff, recall, assign, discipline, adjust grievances and discharge said employees or subcontractors.
PAYMENT OF TJCONSULTING MEDIA LTD PERSONNEL
TJConsulting Media Ltd agrees to be solely responsible for all salaries and other compensation of all TJConsulting Media Ltd employees, agents or subcontractors who provide services to Customer hereunder and work on designated projects. TJConsulting Media Ltd further agrees that it will be solely responsible for making all necessary deductions and withholdings from its employees' salaries and other compensation, and for the payment of any and all contributions, taxes, and assessments and agrees to comply with all other requirements of the Federal Social Security, State Unemployment Compensation and Federal Withholding of Income Tax Laws on all salary and other compensation of said employees or subcontractors.
It is agreed by the parties hereto that this is not an exclusive agreement and that Customer has the right to use or contract for the use of similar services from other contractors or providers. Likewise, TJConsulting Media Ltd has the right to provide and contract to provide similar services to other clients.
NO VOLUME GUARANTEE
Other than services specified on an applicable Schedule and/or Proposal it is understood that no promises or representations whatsoever have been made as to the potential amount of business TJConsulting Media Ltd can expect at any time during the term of this Agreement. TJConsulting Media Ltd represents and warrants that TJConsulting Media Ltd is solely responsible for any expenses incurred by it related to this Agreement and agrees that Customer shall not be obligated for any expense incurred by TJConsulting Media Ltd in connection with any change in the number of TJConsulting Media Ltd's employees utilized, or expenditures made by TJConsulting Media Ltd for additional facilities or equipment unless approved in writing in advance by the Customer.
Customer accepts responsibility for the results of the services being provided and agrees to perform the following functions in connection with this Agreement:
- Make all management decisions and perform all management functions.
- Designate a competent individual to oversee the services.
- Evaluate the adequacy and results of the services performed.
- Accept responsibility for the results of the services.
- Establish and maintain internal controls, including monitoring ongoing activities.
SECURITY NO CONFLICTS
TJConsulting Media Ltd agrees that TJConsulting Media Ltd's employees, representatives and agents upon entering Customer's premises shall, if required, sign in at the facility "SIGN-IN LOG" and, if applicable, shall wear visible identification specifying TJConsulting Media Ltd's name. TJConsulting Media Ltd employees, representatives and agents shall be subject at all times to Customer's security policies and procedures. Each party agrees to inform the other of any information made available to the other that is classified or restricted data, agrees to comply with the security requirements imposed by any state or local government, or by the United States Government, and shall return all such material upon request. Each party warrants that its participation in this Agreement does not create any conflict of interest prohibited by the United States Government or any other domestic or foreign government and shall promptly notify the other party if any such conflict arises during the Term.
COMPLIANCE WITH IMMIGRATION LAW
TJConsulting Media Ltd shall comply with all applicable immigration laws and regulations with respect to any alien employees assigned to perform services for Customer. Customer agrees to permit TJConsulting Media Ltd to post at the worksite any notices required to be so posted under such laws or regulations.
RIGHTS UPON TERMINATION
Upon termination or other expiration of this Agreement, TJConsulting Media Ltd agrees to immediately return to Customer all papers, materials and other properties of Customer held by TJConsulting Media Ltd relating to the services performed hereunder.
EVERY EFFORT HAS BEEN MADE TO ACCURATELY REPRESENT OUR PRODUCTS AND SERVICES AND THEIR POTENTIAL. EVEN THOUGH THIS INDUSTRY IS ONE OF THE FEW WHERE ONE CAN WRITE THEIR OWN CHECK IN TERMS OF EARNINGS, THERE IS NO GUARANTEE THAT YOU WILL EARN ANY MONEY USING THE TECHNIQUES AND IDEAS IN THE MATERIALS ON THE SITE, OR ANY PRODUCTS OR SERVICES PROVIDED PURSUANT TO THE SITE. EXAMPLES IN THESE MATERIALS ARE NOT TO BE INTERPRETED AS A PROMISE OR GUARANTEE OF EARNINGS. EARNING POTENTIAL IS ENTIRELY DEPENDENT ON THE PERSON USING OUR PRODUCTS, IDEAS, AND TECHNIQUES. WE DO NOT PURPORT ANY OF OUR PRODUCTS TO BE A “GET RICH SCHEME.”
ANY CLAIMS MADE OF ACTUAL EARNINGS OR EXAMPLES OF ACTUAL RESULTS CAN BE VERIFIED UPON REQUEST. YOUR LEVEL OF SUCCESS IN ATTAINING THE RESULTS CLAIMED IN OUR MATERIALS DEPENDS ON THE TIME YOU DEVOTE TO OUR PROGRAMS, IDEAS, AND TECHNIQUES MENTIONED, YOUR FINANCES, KNOWLEDGE, AND VARIOUS SKILLS. SINCE THESE FACTORS DIFFER ACCORDING TO THE INDIVIDUAL, WE CANNOT GUARANTEE YOUR SUCCESS OR INCOME LEVEL, NOR ARE WE RESPONSIBLE FOR ANY OF YOUR ACTIONS.
MATERIALS IN OUR PRODUCTS, SERVICES AND ON OUR WEBSITE MAY CONTAIN INFORMATION THAT INCLUDES, OR IS BASED UPON, FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE SECURITIES LITIGATION REFORM ACT OF 1995. FORWARD-LOOKING STATEMENTS GIVE OUR EXPECTATIONS OR FORECASTS OF FUTURE EVENTS. YOU CAN IDENTIFY THESE STATEMENTS BY THE FACT THAT THEY DO NOT RELATE STRICTLY TO HISTORICAL OR CURRENT FACTS. THEY USE WORDS SUCH AS “ANTICIPATE,” “ESTIMATE,” “EXPECT,” “PROJECT,” “INTEND,” “PLAN,” “BELIEVE,” AND OTHER WORDS AND TERMS OF SIMILAR MEANING IN CONNECTION WITH A DESCRIPTION OF POTENTIAL EARNINGS OR FINANCIAL PERFORMANCE.
ANY AND ALL FORWARD-LOOKING STATEMENTS HERE, OR ON ANY OF OUR SALES MATERIALS, ARE INTENDED TO EXPRESS OUR OPINION OF EARNINGS POTENTIAL. MANY FACTORS ARE IMPORTANT IN DETERMINING YOUR ACTUAL RESULTS AND NO GUARANTEES ARE MADE THAT YOU WILL ACHIEVE RESULTS SIMILAR TO OURS OR THE TESTIMONIALS OF OUR CUSTOMERS. IN FACT, NO GUARANTEES ARE MADE THAT YOU WILL ACHIEVE ANY RESULTS FROM THE IDEAS AND TECHNIQUES IN OUR MATERIALS, OR SERVICES PROVIDED PURSUANT TO THESE MATERIALS.