The standard Master Services Agreement that governs every Vertuem engagement: published in full before anything is signed, the same template every time.
This Master Services Agreement (the “Agreement”) is entered into as of the date of last signature below (the “Effective Date”) by and between Vertuem North America LLC, a Delaware limited liability company with its principal place of business in New York, New York (“Vertuem,” “we,” or “us”), and the client identified on the applicable Statement of Work (the “Client,” “you”). Vertuem and the Client are each a “Party” and together the “Parties.”
This Agreement governs all services provided by Vertuem to the Client. By signing a Statement of Work, accepting a proposal that references this Agreement, or otherwise engaging Vertuem to perform services, the Client agrees to be bound by these terms.
1. Services and Statements of Work
- Vertuem will provide the services described in one or more written statements of work, proposals, or order forms agreed to by both Parties (each, a “Statement of Work” or “SOW”). Each SOW is incorporated into and governed by this Agreement.
- Each SOW will describe the scope of services, deliverables, fees, timeline, and any project-specific terms. If a term in an SOW conflicts with this Agreement, the SOW controls for that engagement only, except for Sections covering Intellectual Property, Limitation of Liability, and Indemnification, which control unless expressly amended in writing.
- Services may be performed by Vertuem personnel, members of its specialist network, or qualified subcontractors. Vertuem remains responsible for the performance of its subcontractors under this Agreement.
2. Fees and Payment
- The Client will pay the fees set out in each SOW. Unless an SOW states otherwise, Vertuem invoices monthly in arrears, and invoices are due within fifteen (15) days of the invoice date.
- Fixed-fee engagements are billed according to the milestone or payment schedule in the SOW. Time-and-materials engagements are billed at the rates stated in the SOW.
- Late amounts accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Vertuem may suspend services on amounts more than thirty (30) days overdue, after providing written notice.
- Fees are exclusive of taxes. The Client is responsible for all sales, use, value-added, and similar taxes, excluding taxes on Vertuem’s net income.
- The Client will reimburse pre-approved, reasonable out-of-pocket expenses (such as travel, software licenses, and third-party services) incurred in connection with the services.
- Except as required by law, all fees paid are non-refundable. Deposits are applied against the final invoice for the relevant engagement.
3. Term and Termination
- This Agreement begins on the Effective Date and continues until terminated. Each SOW continues for the period stated in it or until the services are complete.
- Either Party may terminate an SOW for convenience on thirty (30) days’ prior written notice, unless the SOW states otherwise.
- Either Party may terminate this Agreement or any SOW immediately on written notice if the other Party materially breaches and fails to cure the breach within fifteen (15) days of receiving written notice of it.
- On termination, the Client will pay for all services performed and expenses incurred up to the effective date of termination, including work in progress. Sections relating to payment, intellectual property, confidentiality, limitation of liability, indemnification, and general provisions survive termination.
4. Intellectual Property
- Each Party retains all rights in intellectual property it owned before the engagement or develops independently of it (“Background IP”).
- Subject to full payment of all fees due under the relevant SOW, Vertuem assigns to the Client all right, title, and interest in the final deliverables specifically created for the Client under that SOW (the “Deliverables”), excluding Vertuem Materials defined below.
- Vertuem retains ownership of its tools, methods, frameworks, code libraries, design systems, know-how, and other materials of general application that it uses or develops in the course of providing services (“Vertuem Materials”). To the extent Vertuem Materials are embedded in the Deliverables, Vertuem grants the Client a perpetual, worldwide, non-exclusive, royalty-free license to use them as part of the Deliverables.
- Until all fees due under an SOW are paid in full, Vertuem retains ownership of the Deliverables, and any license to use them is conditional on payment.
- Vertuem may describe the engagement and display non-confidential Deliverables in its portfolio, case studies, and marketing materials, and may identify the Client by name and logo for that purpose, unless the SOW states otherwise.
5. Confidentiality
- “Confidential Information” means non-public information disclosed by one Party to the other that is marked confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure.
- The receiving Party will use Confidential Information only to perform its obligations under this Agreement, will protect it with at least reasonable care, and will not disclose it to third parties except to personnel and subcontractors who need it and are bound by similar obligations.
- Confidential Information does not include information that is or becomes public through no fault of the receiving Party, was rightfully known before disclosure, is rightfully received from a third party, or is independently developed. A Party may disclose Confidential Information if required by law, provided it gives reasonable prior notice where permitted.
- These obligations continue for three (3) years after disclosure, except that trade secrets remain protected for as long as they qualify as trade secrets under applicable law.
6. Client Responsibilities
- The Client will provide timely access to the information, materials, approvals, and personnel that Vertuem reasonably needs to perform the services. Vertuem is not responsible for delays caused by the Client’s failure to do so, and timelines and fees may be adjusted accordingly.
- The Client represents that any materials it provides to Vertuem do not infringe the rights of any third party and that the Client has the right to provide them for use in the services.
7. Warranties and Disclaimers
- Vertuem warrants that it will perform the services in a professional and workmanlike manner consistent with generally accepted industry standards.
- Except as expressly stated in this Agreement, the services and Deliverables are provided “as is.” Vertuem disclaims all other warranties, whether express, implied, or statutory, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Vertuem does not warrant that the Deliverables will be uninterrupted or error-free.
8. Limitation of Liability
- Neither Party will be liable for any indirect, incidental, special, consequential, or punitive damages, or for lost profits, revenue, data, or goodwill, even if advised of the possibility of such damages.
- Each Party’s total aggregate liability arising out of or related to this Agreement and any SOW will not exceed the total fees paid by the Client to Vertuem under the SOW giving rise to the claim in the twelve (12) months preceding the event giving rise to the liability.
- The limitations in this Section do not apply to a Party’s indemnification obligations, breach of confidentiality, or liability arising from gross negligence, willful misconduct, or fraud.
9. Indemnification
- The Client will defend, indemnify, and hold harmless Vertuem and its members, officers, employees, and contractors from any third-party claim, damage, or expense (including reasonable attorneys’ fees) arising from materials the Client provides, the Client’s use of the Deliverables, or the Client’s breach of this Agreement.
- Vertuem will defend, indemnify, and hold harmless the Client from any third-party claim that the Deliverables, as delivered by Vertuem and excluding Client-provided materials, infringe a third party’s intellectual property rights, subject to the Limitation of Liability above.
10. Independent Contractor
- Vertuem is an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship. Neither Party may bind the other or incur obligations on the other’s behalf.
11. Governing Law and Disputes
- This Agreement is governed by the laws of the State of New York, without regard to its conflict-of-laws principles.
- The Parties will first attempt to resolve any dispute through good-faith negotiation. Any dispute not resolved within thirty (30) days will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and each Party consents to personal jurisdiction there.
- The prevailing Party in any dispute arising under this Agreement is entitled to recover its reasonable attorneys’ fees and costs.
12. General Provisions
- Neither Party is liable for delays or failures caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, labor disputes, and failures of third-party services or infrastructure.
- Neither Party may assign this Agreement without the other’s prior written consent, except that either Party may assign it to a successor in connection with a merger, acquisition, or sale of substantially all of its assets.
- This Agreement, together with all SOWs, is the entire agreement between the Parties and supersedes all prior discussions and agreements on its subject matter. Any amendment must be in writing and signed by both Parties.
- If any provision is found unenforceable, the remaining provisions remain in full effect, and the unenforceable provision will be modified to the minimum extent necessary to make it enforceable.
- A Party’s failure to enforce any provision is not a waiver of its right to enforce it later. Notices must be in writing and sent to the addresses on the applicable SOW, by email with confirmation of receipt or by recognized courier.
Agreed and Accepted
Each Party causes this Agreement to be signed by its authorized representative on the applicable Statement of Work, which records the signatures, dates, and notice addresses for the engagement.