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Master Services Agreement

This Master Services Agreement (the “Agreement“) is made and entered into by and between Jaymie Scotto and Associates LLC (the “Consultant” or “JSA”), a Nevada Limited Liability Company with its principal place of business at 3024 Sierra Juniper Court, Las Vegas, NV 89138 for itself and its heirs, executors, administrators, related entities and assigns and the Customer. Customer and JSA may each be referred to herein as a “Party” and collectively, the “Parties”.

RECITALS

WHEREAS, JSA is in the business of providing public relations and marketing services to its clients and has specific expertise and experience in the areas for which it has been retained by Customer;

WHEREAS, the Customer desires to engage the Consultant to provide certain services and JSA desires to perform agreed upon services to the Customer, subject to the following terms and conditions;

NOW, THEREFORE, the Parties hereby agree as follows:

1. Services.

 

1.1. Statement(s) of Work. During the term of this Agreement (as hereinafter defined), JSA shall render to the Customer certain marketing and public relations services (“Consulting Services” or “Services”), described in one or more separate Statement(s) of Work (the “Statement(s) of Work” or “SOW(s)”) executed by both Parties. Each SOW will define the Services to be performed and the fees, costs and expenses (the “Fees”) to be paid.

The terms and conditions of this Agreement shall govern each SOW issued hereunder. Notwithstanding anything to the contrary, any conflict or discrepancy between the terms of this Agreement and any Statement of Work shall be resolved in favor of this Agreement, unless the Statement of Work references and overrides a specific provision of this Agreement. If the Parties execute multiple SOWs, each SOW, combined with these terms and conditions and an Addendum (if any) constitutes a separate and individual Agreement between the Customer and JSA.

1.2. Acceptance. Without limiting any applicable warranties set forth in the Agreement, the Services and any deliverables delivered pursuant to the SOW will be deemed accepted upon performance or delivery to the Customer.

2. Assumptions. JSA’s performance under this Agreement is based and conditioned upon the following assumptions. In the event any assumption below fails to be true and/or remain true, this may negatively impact performance, timelines and/or Fees, and JSA is excused from performance or delay due to the failure of any assumption.

 

2.1. The Customer will provide JSA with prompt access to information, facilities and personnel as reasonably necessary for JSA to perform Services.

 

2.2. The Customer will promptly reply to JSA’s requests and communications.

 

2.3. JSA is not responsible for the performance or failure of performance of any other contractors, vendors, or other third parties, or any software, hardware, equipment, or other items provided by third parties.

 

2.4. JSA is entitled to rely upon the truth and accuracy of written and spoken statements provided by the Customer, including by its employees.

2.5. JSA is not responsible for obtaining any third party licenses, rights, or other items. The Customer will obtain and pay for all needed licenses and rights.

 

2.6. JSA does not provide legal services. No information or statement provided by JSA shall be deemed legal advice. The Customer shall obtain its own legal counsel and legal review of any and all applicable items.

 

2.7. JSA does not represent or warrant achievement of any specific business outcome or goal. The Customer remains responsible for the direction and strategy of its own business.

3. Compensation.

 

3.1. Fees, Billing and Payment. The fees and expenses for the Services to be performed by JSA shall be set forth in each Statement of Work.

3.2. Payment. Unless otherwise set forth in a Statement of Work, the Customer shall pay all invoices within thirty (30) days of the date of the Customer’s receipt of JSA’s invoice. All invoices not contested in writing within thirty (30) business days of receipt are deemed accepted by the Customer as true and accurate and are payable in full. Interest will be charged on all accounts not paid when due at a rate of two percent per month, or, if less, the maximum rate allowed by law. In the event the Customer fails to pay JSA all amounts which become due under this Agreement or fails to perform its obligations hereunder, and Consultant refers such matter to an attorney or collection agency, the Customer agrees to pay, in addition to the amounts due, any and all costs incurred by the JSA as a result of such action, including reasonable attorneys’ fees.

3.3. Expenses. The Customer agrees to reimburse Consultant for expenses incurred by JSA on Customer’s behalf during the term of this Agreement:

3.3.1. Such expenses shall include but are not limited to, wire fees, printing expenses, travel expenses to and from all Customer work and trade show locations; all lodging and meal expenses; and miscellaneous travel-related expenses including parking and tolls. Approval may be provided by the Customer via email.

3.3.2. JSA shall invoice and submit receipts where available, itemizing the dates on which expenses are incurred. The Customer shall reimburse JSA the amounts due pursuant to submitted invoices as set forth above.

4. Term and Termination. This Agreement shall commence on upon mutual execution of any SOW by Customer and JSA, and shall continue until either party notifies the other of its intent to terminate this Agreement in accordance with the provisions below. The following provisions shall survive any Termination: [5, 6, 7, 8, 10, 12, 13, 14].

4.1. Suspension or Termination for Cause. In the event that Customer has failed to comply with the payment terms as set forth above, JSA has the right to suspend the performance of Services or terminate this Agreement. If the Customer’s account becomes more than sixty (60) days past due, all Services shall be suspended until the Customer’s account has been brought current or other payment arrangements have been agreed upon by both Parties.

4.2. Termination for Convenience. This Master Services Agreement will remain in effect and survive the termination or expiration of any Statements of Work hereunder. Each Statement of Work governed by this Agreement shall specify a Term for the Services to be performed, and the conditions upon which each SOW may be terminated for convenience. If a certain Statement of Work does not specify the conditions of termination, then it may be terminated with a 45-day notice. If there are no active Statements of Work, either Party may terminate this Agreement without cause immediately upon written notice to the other Party.

5. Relationship of the Parties.

 

5.1. Independent Contractor Relationship. Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer-employee, partnership, or joint venture relationship between the Customer and JSA. JSA is an independent contractor and not an employee of the Customer or any of its subsidiaries or affiliates. It is understood that the Customer will not withhold any amounts for payment of taxes from the compensation of JSA hereunder. JSA will not represent to be or hold itself out as an employee of the Customer and JSA acknowledges that it shall not have the right or entitlement in or to any of the pension, retirement or other benefit programs now or hereafter available to the Customer’s regular employees. Any and all sums subject to deductions, if any, required to be withheld and/or paid under any applicable state, federal or municipal laws or union or professional guild regulations shall be Consultant’s sole responsibility and JSA shall indemnify and hold Customer harmless from any and all damages, claims and expenses arising out of or resulting from any claims asserted by any taxing authority as a result of or in connection with said payments.

 

5.2. Professionalism. JSA and Customer agree to act in a courteous and professional manner at all times. If either Party hereto or any of its officers, directors, employees, agents or representatives commits any act which might reasonably be considered: (i) to be immoral, unprofessional, deceptive, scandalous or obscene; or (ii) to hinder, prevent, or otherwise negatively impact the ability of the Party to fulfill its obligations under this Agreement; or (iii) to injure, tarnish, damage or otherwise negatively impact either the Party and/or the reputation of the Party, the affected Party shall have the right to terminate this Agreement without liability to the other Party upon five (5) days written notice.

 

5.3. Non-Solicitation. Customer acknowledges that JSA has expended significant time and resources to obtain a base of employees and subcontractors. Customer also acknowledges that JSA endeavors to match each client’s needs with appropriate employee(s) or subcontractor(s) to fit the Customer’s needs and that Customer will develop goodwill and strong relationships with the employee(s) or subcontractor(s) placed with Customer under this Agreement and any applicable SOW as well as with other JSA employees who support that placement. Therefore, during the Term of this Agreement and for a period of three (3) years (or the maximum duration allowed by law, whichever is less) after its termination, Customer agrees as follows:

 

5.3.1. The Customer will not, either directly or indirectly, on its own behalf or in the service or on behalf of others, solicit or attempt to solicit, recruit, induce, divert, hire, or cause to be hired, either in the capacity of an employee or a subcontractor, any person currently or formerly employed or contracted by the Consultant. A breach of this section 5.3 will entitle JSA to receive immediate payment from the Customer in the amount of one time (1x) the individuals salary in their new position (including any bonuses) (for individuals paid hourly, the amount shall be 2040 x the hourly rate) as liquidated damages and not as a penalty, but as a reasonable reflection of JSA’s damages.

 

5.4.Non-Exclusive Engagement. The Customer acknowledges and agrees that, so long as the Consultant does not breach any of its obligations in Section 6 (Confidentiality), nothing set forth in this Agreement impairs the Consultant’s right to provide to any third parties products and services similar to the services to be provided to the Customer on such terms and conditions as JSA may determine in its sole discretion.

6. Confidentiality. In the course of performing the Services, the Parties recognize that they may come in contact or become familiar with non-public information that the Party or its subsidiaries or affiliates may consider confidential. This information may include, but is not limited to, information pertaining to JSA or Customer contact information or financial information which may be of value to a competitor. Parties agree to keep all such information confidential for the Term of this Agreement, and for five (5) years following the termination of this Agreement and agree not to discuss or divulge, except as expressly approved by the Parties in writing, to anyone other than appropriate JSA or Customer personnel.

7. Indemnification.

 

7.1. Of JSA by Customer. The Customer hereby agrees to indemnify, hold harmless, and defend JSA and its subsidiaries, affiliates, related entities, partners, agents, officers, directors, employees, attorneys, heirs, successors, and agents (each a “JSA Indemnitee”), from and against any and all claims, actions, demands, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees and expenses), and liabilities of every kind and character whatsoever (each, a “Claim”), made or brought against any JSA Indemnitee with respect to any advertising, branding, research, content or other product or service which JSA prepared or performed for the Customer hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by the Customer or its agents to JSA including, without limitation, information concerning the Customer’s products, services or personnel, the products or services of the Customer’s competitors or the Customer’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, logo, marks or other information furnished by the Customer or its agents to be included in any news announcements or media placements; (iii) the use of any materials or data provided or created by JSA and changed by Customer or its agents or used in a manner different from that agreed upon by the Parties; (iv) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (v) any material breach of the terms of this Agreement by, or any act of omission of, Customer or its agents or employees relating to media commitments made by JSA pursuant to Customer’s approval as provided for herein; and/or (vi) the inaccuracy or breach of any of the representations and promises made by Customer in this Agreement. This indemnity shall require the payment of costs and expenses by Customer as they occur. JSA shall promptly notify Customer upon receipt of any claim or legal action referenced in this paragraph. The provisions of this paragraph shall survive the termination or cancellation of this Agreement.

7.2. Of Customer by JSA. JSA hereby agrees to indemnify, hold harmless and defend Customer and its subsidiaries, affiliates, related entities, partners, agents, officers, directors, employees, attorneys, heirs, successors, and assigns, and each of them, from and against any and all claims, actions, demands, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees and expenses), and liabilities of every kind and character whatsoever, which may arise from the inaccuracy or breach of any of the representations and promises made by Consultant in this Agreement. This indemnity shall require the payment of costs and expenses by Consultant as they occur. Customer shall promptly notify JSA upon receipt of any claim or legal action referenced in this paragraph. The provisions of this paragraph shall survive the termination or cancellation of this Agreement.

8. Representations.


Customer warrants and represents that: (a) it has and will have full power and authority to enter into this Agreement and any applicable SOW; (b) the execution and delivery of this Agreement and the performance of Customer’s obligations hereunder: (i) is not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality, or court having jurisdiction over such party; and (iii) is, and shall be, in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, industry standards, and all binding orders of any court, agency or other governmental body with appropriate authority. Customer further warrants and represents that it has duly obtained and will continue to maintain during the term of this Agreement, any and all licenses, permits, and authorizations necessary or required by Federal, state or local laws, rules, regulations, and/or ordinances covering Customer’s activities pursuant to this Agreement and any agreed upon Statement of Work. If Customer includes, or requires JSA to include, any content, any third party materials, including, but not limited to, written works, photography, music, use and likeness, sound recording, video recordings, or any other content that requires licenses and/or approvals, Customer warrants and represents that: (i) Customer has obtained all appropriate authorizations and releases, including, but not limited to, all releases of a third party’s appearance, name, image, voice, personal identification, use and likeness that JSA includes on behalf of Customer in any testimonial, social media post, audio, video, visual, or recording, and (ii) Customer has obtained all required licenses and approvals and shall be solely liable for any payment due therefrom.

JSA warrants and represents that: (a) it has and will have full power and authority to enter into this Agreement and any applicable SOW; (b) the execution and delivery of this Agreement and the performance of JSA’s obligations hereunder: (i) is not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality, or court having jurisdiction over such party; and (iii) is, and shall be, in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, industry standards, and all binding orders of any court, agency or other governmental body with appropriate authority. If JSA includes any content, any third party materials, including, but not limited to, written works, photography, music, use and likeness, sound recording, video recordings, or any other content that requires licenses and/or approvals, other than those provided by Customer, JSA warrants and represents that JSA has obtained all required licenses and approvals required for inclusion in the Services.

9. Notices.

 

9.1. Writing; Permitted Delivery Methods. Each Party giving or making any notice, request, demand, or other communication required or permitted by this Agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this Agreement: personal delivery, mail (registered or certified mail, postage prepaid, return receipt requested), nationally recognized overnight courier (fees prepaid), or email.

 

9.2. Addresses. Customer shall address notices under this section to JSA at the following address, with copy by email:

 

Notices to JSA:
Jaymie Scotto & Associates
ATTN: Jaymie Cutaia
3024 Sierra Juniper Court
Las Vegas, NV 89138
Email: [email protected]

10. Intellectual Property Rights

 

10.1. Unless otherwise agreed and subject to the exceptions in Sections 10.2 and 10.3 below, the JSA hereby agrees that all Intellectual Property Rights in the Services and deliverables (as stated in each SOW) vest in the Customer upon receipt of payment for said Services and deliverables. The Consultant hereby assigns and will ensure that JSA’s personnel assign, to the Customer with full title guarantee (by way of present and future assignment where possible), all such rights, including perpetually, for all purposes and worldwide. JSA agrees that its personnel will do such acts and sign such documents as necessary to give effect to the matters contemplated by this Section.

 

10.2. JSA retains all Intellectual Property Rights, whether owned or licensed, in JSA Material, provided that where any JSA Material is delivered as part of the Services or the deliverables, JSA hereby grants to the Customer or any Customer Affiliate a worldwide, non-exclusive, perpetual, irrevocable, fully paid-up, royalty-free license to use (including the right to sublicense) or modify JSA Material.

 

10.3. JSA retains all Intellectual Property Rights pertaining to any distribution lists used in the course of disseminating Customer announcements, news, or other information pertaining to the Customer unless the Customer has provided the distribution list to JSA.

 

10.4. Except as otherwise expressly provided herein, nothing in this Agreement shall be deemed to grant, directly or indirectly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each Party retains all right, title, and interest in and to its technologies and other intellectual property.

11. Force Majeure.

 

11.1. Event of Force Majeure. means an event beyond the control of the Party, which prevents the Party from complying with any of its obligations under this Agreement, including but not limited to: act of God, war, pandemics, hostilities, invasion, act of foreign enemies, mobilization, requisition, or embargo; riot, commotion, strikes, go slows, lock outs or disorder, acts or threats of terrorism.

 

11.2. Consequences of Force Majeure Event. Neither the Customer nor JSA shall be considered in breach of this agreement to the extent that performance of their respective obligations (excluding payment obligations) are prevented by an Event of Force Majeure that arises after the Effective Date. The Party (the “Affected Party”) prevented from carrying out its obligations hereunder shall give notice to the other Party of an Event of Force Majeure upon it being foreseen by, or becoming known to, the Affected Party.

12. Disclaimers, Warranties & Limitation of Liability.

 

12.1. Limited Warranty. JSA warrants to the Customer that the Services will be performed in a workmanlike and professional manner in accordance with professional standards in the industry and the requirements of this Agreement. JSA shall, as its sole obligation and the Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 12.1, re-perform the Services which gave rise to the breach or, if JSA cannot re-perform such defective Services, Customer may terminate this Agreement pursuant to Section 4 for JSA’s breach; provided that Customer shall notify JSA in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail. If the Customer is dissatisfied with the quality of Services provided by JSA personnel, Customer’s sole and exclusive remedy is to terminate the Agreement as described above; JSA shall have no further liability to Customer in the event of such termination.

 

12.2. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL ANY PARTY BE RESPONSIBLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR INCURRED IN CONNECTION WITH THIS AGREEMENT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATING TO THE SERVICES, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY AND REGARDLESS OF THE CAUSES OF SUCH LOSS OR DAMAGES OR WHETHER ANY OTHER REMEDY PROVIDED HEREIN FAILS, NOR SHALL A PARTY’S TOTAL LIABILITY TO THE OTHER (EXCLUDING THIRD-PARTY INDEMNITY LIABILITIES OR A BREACH OF CONTRACT UNDER THE PRECEDING NON-SOLICITATION CLAUSE) EXCEED IN THE AGGREGATE, THE TOTAL FEES PAID TO JSA DURING THE SIX (6) MONTHS PRIOR TO THE DATE THAT SUCH DISPUTE ARISES, UNDER THE APPLICABLE SOW THAT GIVES RISE TO A DISPUTE.

13. Counterparts; Electronic Signatures

 

13.1. Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which is an original but all of which constitute the same instrument.

 

13.2. Electronic Signatures. This Agreement, agreements ancillary to this Agreement, and related documents entered into in connection with this Agreement are signed when a Party’s signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.

14. Miscellaneous

 

14.1. Entire Agreement and Amendments. This Agreement constitutes the entire agreement of the Parties with regard to the subject matter hereof and replaces and supersedes all other agreements or understandings, whether written or verbal. No amendment or extension of this Agreement shall be binding unless in writing and signed by both Parties.

 

14.2. Waiver. Failure to invoke any right, condition, or covenant in this Agreement by either Party shall not be deemed to imply or constitute a waiver of any rights, condition, or covenant and neither Party may rely on such failure.

 

14.3. Binding Effect, Assignment. This Agreement shall be binding upon and shall insure to the benefit of JSA and the Customer and to the Customer’s successors and assigns. Nothing in this Agreement shall be construed to permit the assignment by JSA of any of its rights or obligations hereunder, and such assignment is expressly prohibited without the prior written consent of the Customer.

 

14.4. Governing Law, Severability. This Agreement shall be governed by the laws of the State of Nevada. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.