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Master Services Agreement

This MASTER SERVICES AGREEMENT (the "Agreement"), made and entered into on Date, is by and between Fishtown Analytics LLC and [Client Legal Entity].

Parties

Fishtown Analytics LLC (hereafter Fishtown Analytics)

[Fishtown Analytics Address]

Fishtown Analytics Email for Notice: Fishtown Analytics Email

[Client Name] (hereafter Client)

[Client Address]

Client Emails for Notice: [Client Email]

Analytics Services

Professional Standard. Fishtown Analytics will provide the services identified in the Statement of Work. Fishtown Analytics will provide these services in a professional manner and in accordance with applicable professional standards.

Change Request

A "Change Request" is any request for work outside the scope of the Statement of Work.

If such a request is made, Fishtown Analytics will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, Fishtown Analytics will provide a price estimate to the Client. Upon approval of the Change Request’s scope and price, Fishtown Analytics will incorporate the work into the schedule. The Client understands that the schedule may be affected depending on the size or volume of Change Requests.

Payment

Payment. Payments are accepted via check or ACH/wire.

Invoice. Fishtown Analytics will invoice the Client according to the Statement of Work. Client shall pay all invoices within 30 days of receipt.

Expenses. In addition to Fishtown Analytics' fees, the Client will be invoiced, upon written Client approval, for Fishtown Analytics' expenses. All approved expenses will be invoiced to Client without markup.

Taxes. Client is responsible for paying all applicable taxes, including sales, use and value added taxes.

Late Payment. Overdue balances may be charged a monthly service fee of 1.5% (or the greatest amount allowed by law). In event of late payment, Fishtown Analytics reserves the rights to (a) suspend services until full payment has been made or (b) require Client to pre-pay for any future services.

Delivery

Timeframe. Fishtown Analytics will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Fishtown Analytics' delivery timeframe depends upon the Client's prompt response to any questions, requests for Client materials, and general cooperating throughout the process.

Fishtown Analytics Agents. Fishtown Analytics may hire third party analysts or service providers ("Analytics Agents") as independent contractors to provide the services described herein. Fishtown Analytics is responsible for Analytics Agents' compliance with this Agreement.

Testing & Acceptance. Fishtown Analytics shall use commercially reasonable efforts to test Deliverables before providing them to the Client.

The Client shall promptly review all Deliverables, and must notify Fishtown Analytics of any failure to conform to the Statement of Work within 5 business days of receipt. If Fishtown Analytics does not receive a timely notification, the Deliverable will be deemed accepted. The Client's notification must clearly identify the problems with the Deliverable.

Client Responsibilities. Client must promptly: (a) coordinate any decision-making activities with 3rd parties; (b) provide Client Data in a form suitable for reproduction or incorporation into the Deliverables; and (c) proofread the Deliverables. Additional client responsibilities may be outlined within the attached Scope of Work document(s).

Client Rights in Deliverables

IP Assignment. Upon Client acceptance of all Final Deliverables, Fishtown Analytics shall assign IP rights in the Final Deliverables to the Client. These IP rights include all ownership rights, including any copyrights, in any software, analysis and presentation created by Fishtown Analytics and incorporated into a Final Deliverable, except as otherwise noted in this Agreement.

Fishtown Analytics Rights in Deliverables

Fishtown Analytics IP. Client acknowledges that the methodologies, strategies, designs, templates, software (and any modifications thereto), pre-existing IP of Fishtown Analytics (and any modifications thereto), general knowledge, skills, experience, ideas, concepts, know-how and techniques used by Fishtown Analytics in the course of performing services hereunder are all part of Fishtown Analytics’ proprietary IP, and are owned exclusively by Fishtown Analytics.

Open Source Analysis. Upon written permission by Client, Fishtown Analytics may publish non-confidential components of Final Deliverables under an open source license on Fishtown Analytics’ websites and Github repositories for the purposes of promotion of Fishtown Analytics.

Project Disclosure. Fishtown Analytics may publicly describe its role in the Project.

Fishtown Analytics and Client Relationship

Non-Exclusive. This Agreement does not create an exclusive relationship. The Deliverables are not a "work for hire" under Copyright Law.

No Assignment. Except as set forth herein, neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such attempted assignment will be void ab initio. Consent is not required for a disposition of substantially all assets of the assigning party's business.

Confidential Information. Each party shall maintain Confidential Information in strict confidence, and shall not use Confidential Information except (a) as necessary to perform its obligations under the Agreement, or (b) as required by a court or governmental authority. Confidential Information includes proprietary technical and business information and any other information marked "Confidential."

Security. Fishtown Analytics will use commercially appropriate measures, including the establishment and maintenance of policies, procedures, and technical, physical, and administrative safeguards, to ensure the security and confidentiality of Confidential Information, and protect against any reasonably foreseeable threats or hazards to the security or integrity of Confidential Information.

Exception. Confidential Information does not include (a) any information that is in the public domain, (b) becomes publicly known through no fault of the receiving party, or (c) is otherwise known by the receiving party before obtaining access to it under this Agreement or properly received from a third party without an obligation of confidentiality.

No Solicitation

Non-Solicit. During the term of this Agreement, and for a period of 12 months after its expiration, Client shall not solicit any of Fishtown Analytics' employees or Analytics Agents (collectively, "Fishtown Analytics Employee"), and Fishtown Analytics shall not solicit any of Clients’ employees or agents. "Solicit" is defined to include: solicit, recruit, engage, or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire, or any other basis.

Agency Commission. In the event of such Solicitation, the solicitation party shall pay the other party an agency commission of 50% of the employee's annual starting salary, or if hired as a contractor, 50% of the total contract fees paid to employee during the first year following the Solicitation.

Termination

Discretionary Termination by Client. IF: Client uses this discretionary termination provision, THEN: Fishtown Analytics will retain all payments already made as of the notification date, and Client shall pay Fishtown Analytics (a) for all approved expenses incurred as of the date of notification of termination and (b) for any hours worked but not yet invoiced at the hourly rate defined in the Statement of Work.

Discretionary Termination by Fishtown Analytics. IF: Fishtown Analytics uses this discretionary termination provision, THEN: (a) Fishtown Analytics will retain (or, if not paid in advance, will be due) all costs already incurred and a prorated portion of the fees for services performed up to the termination date and (b) Fishtown Analytics will assign sufficient IP rights to Client to allow Client to continue the project.

Termination for Bankruptcy. Subject to any restrictions imposed by law, either party may immediately terminate this Agreement, if the other party either: (1) ceases to do business in the normal course; (2) becomes insolvent; (3) admits in writing its inability to meet its debts or other obligations as they become due; (4) makes a general assignment for the benefit of creditors; (5) has a receiver appointed for its business or assets; (6) files a voluntary petition for protection under the bankruptcy laws; (7) becomes the subject of an involuntary petition under the bankruptcy laws that is not dismissed within 60 days.

Termination for Breach. If a material breach of this Agreement is not cured within 10 business days after a party's receiving written notice of the breach, then the non-breaching party may terminate this Agreement immediately upon notice.

Termination Procedure. Upon expiration or termination of this Agreement: (a) each party shall return (or, at the disclosing party's request, destroy) the Confidential Information of the other party, and (b) other than as expressly provided in this Agreement, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

Risk Allocation

Client Representations

Client represents and warrants to Fishtown Analytics that:

  • Client shall comply with all laws and regulations governing the services and Deliverables.

Fishtown Analytics Representations

Fishtown Analytics represents and warrants to Client that:

  • For any Final Deliverable that includes the work of independent contractors or third party material, Fishtown Analytics shall secure sufficient rights for Client to use the Final Deliverables for their intended purpose.
  • To the best of Fishtown Analytics' knowledge, the final Deliverables will not infringe upon the IP rights of any third party.

LIMITATION OF LIABILITY

The services and the work product of Fishtown Analytics are sold "as is." In all circumstances, Fishtown Analytics' maximum liability to Client for damages for any and all causes whatsoever, and Client's maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to Fishtown Analytics' net profit in connection with services provided during the preceding 12 months. Although Fishtown Analytics will perform services in accordance with this Agreement, it cannot, due to the nature of its work, guarantee any particular outcome or result.

In no event shall Fishtown Analytics be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Fishtown Analytics, even if Fishtown Analytics has been advised of the possibility of such damages.

LIMITED WARRANTY

Except for the express representations and warranties stated in this agreement, Fishtown Analytics makes no warranties whatsoever. Fishtown Analytics explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.

Force Majeure

Either party may invoke Force Majeure to excuse the failure of its timely performance, if such failure was caused by: fire; flood; hurricane, tornado, or other severe storm; earthquake; act of war; sabotage; terrorism; riot; interruption or failure of electrical or telecommunications service (for example, Internet failures); or failure of suppliers, subcontractors, and carriers to substantially meet their performance obligations.

Failure to make a payment may only be considered a Force Majeure event if caused by an interruption in a third-party payment systems that otherwise qualifies as a force-majeure event.

A party invoking force majeure to excuse its failure of timely performance must show that the force-majeure event(s) and their relevant effects (i) were beyond the invoking party's reasonable control and (ii) could not have been avoided through the exercise of due care by the invoking party.

Indemnification

Applicability. This indemnification clause governs all obligations arising under this Agreement (if any) that require a party (the "Indemnifying Party") to defend an individual or organization (a "Protected Person") against a claim, for example, a claim made by a third party.

Indemnification. IF: A third party makes a claim that, if finally successful, would establish a breach of a representation or warranty of this Agreement; THEN: The party who made the representation or warranty will: (i) defend the Protected Person against the claim (as defined below), and (ii) indemnify each Protected Person against any monetary award entered on the claim (as defined below).

Indemnification Against Damage Awards. The Indemnifying Party will indemnify the Protected Person against all monetary awards resulting from a final judgment or award from which no further appeal is taken or possible. Such monetary awards include, for example, damages, penalties, interest, and attorneys-fee awards.

General Terms

Notices

All notices shall be sent by email. Permissible addresses for notice include those stated in this Agreement and any other address reasonably communicated.

A notice that is sent by email but is not read by the addressee is nevertheless effective if, but only if, it has been (a) sent from an email account that has been designated for notice and (b) delivered to an email account that has been designated for notice. Email accounts designated for notice are identified at the top of this Agreement, and may be amended only by written notice.

Dispute Resolution

Early Neutral Evaluation. At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to nonbinding early neutral evaluation, in Pennsylvania, in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association.

Arbitration. At the request of either party, the parties will submit any dispute between them, arising out of or relating to this Agreement or any transaction or relationship arising from it, to binding arbitration in Pennsylvania, through the American Arbitration Association. The prevailing party in any dispute resolved by arbitration or litigation will be entitled to recover its costs and attorneys' fees.

Jurisdiction. The parties irrevocably consent to the jurisdiction of the state and federal courts located in Philadelphia, Pennsylvania. The parties hereby waive any jurisdictional or venue defenses and consent to service of process by certified mail.

Interpretation

Governing Law. This Agreement will governed by the laws of the commonwealth of Pennsylvania without regard to its conflict or choice of law rules.

Analytics Terminology. Any analytics terminology in the Statement of Work is defined according to standard analytics industry usage. Any dispute as to the meaning or scope of analytics terminology will be determined in good faith by Fishtown Analytics.

IF / THEN Construction. Use of capitalized "IF:" and "THEN:" in a sentence is intended only enhance readability. It has no special meaning apart from its lower case meaning.

Modification & Waiver. Any modification of this Agreement must be in writing. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.

Mutual Drafting. Any ambiguity or inconsistency in this Agreement is to be resolved in accordance with the most reasonable construction and not strictly for or against either party by virtue of that party's authorship.

Headings. Section headings are provided for convenience only and do not affect the meaning of any terms.

Integration. This Agreement comprises the entire understanding of the parties and supersedes all prior agreement and understandings.

Definitions

Client Data - all data provided by the Client for use in the preparation of and/or incorporation in the Deliverables.

Deliverables - the services and work product specified in the Statement of Work to be delivered by Fishtown Analytics to Client, in the form and media specified in the Proposal.

Final Deliverables - the final versions of Deliverables provided by Fishtown Analytics and accepted by Client.

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