MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) shall govern the provision of services to the
undersigned____________________(the “Client”) by fuelAI, inc. Additional terms, such as the services and deliverables to be provided hereunder, the schedule for the delivery thereof and the amount of fees payable therefor are set forth on the attached Schedule of Work (the “SOW”) which is hereby incorporated herein by this reference and may, from time to time, be amended upon the written consent of both parties. In the event of any conflict between the terms of any SOW and the terms of this Agreement, the terms of the Agreement shall control.
1. Additional Services, Project Changes
Any services outside the scope of the SOW or changes to previously approved work requested by the Client shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties. Each such additional SOW or Change of Scope is hereby incorporated herein by this reference.
Client will pay all usage fees incurred during the length of their agreement. Client also will be apprised of the monthly management costs to be agreed to before entering into agreement for service. Predetermined amount for management and creation of content will be separate from the usage fees per SMS, MMS, EMAIL and MINUTES. Client will be notified in advance for pre-approval of any additional expenses in excess of more than ten percent (10%) of those set forth on the SOW. At Agency’s discretion, Client shall either pay such fees directly to the third-party vendor or reimburse Agency therefore upon presentation of applicable invoices. Agency shall maintain records of expenses. Where applicable, Agency will invoice Client for all fees related to acquisition of talent or talent services in advance and will only secure talent services upon receipt of all such fees from Client.
3. Time of Payment and Late-Payment Charges
The Client shall pay Agency for the work performed hereunder as set forth on the applicable SOW. In no event will any payment under this Agreement be contingent on receipt of any monies or other compensation by the Client. For the avoidance of doubt, fees or commissions payable to Agency for media planning and buying services are in addition to, and not inclusive of, Agency’s fees for other services which may be listed in the SOW, such as design, branding, hosting, and content distribution and syndication. Delays resulting from the action or inaction of Client may result in an adjustment in fees by Agency, subject to Client approval. Each invoice hereunder is due and payable within 30 days after its invoice date. All rights of the Client herein are conditioned on Agency’s receipt of full payment. In addition, Agency may suspend performance of services, tools and withhold delivery of materials until payment in full of all amounts due. Agency shall not be liable for any damages, losses or liabilities that may arise out of Agency’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue interest at the rate of 1.5% per month. Agency shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.
4. Client Representative
In order to avoid miscommunication, the Client shall appoint a sole representative with full authority to provide or maintain any necessary information and approvals that may be required by Agency (the “Client Representative”). The Client Representative shall be responsible for coordination and review of the Agency’s services and notifying Agency of Client instructions, change orders and approvals. The signature or e-mail approval of the Client Representative shall be final and binding on Client. If after the Client Representative has approved a design, the Client or any authorized person alters the scope of work or requires additional services, the Client shall pay all fees and expenses arising from such changes and additional services as set forth in section 1 above.
5. Client Obligations and Materials
The Agency’s ability to perform its obligations under this Agreement may be dependent on the Client fulfilling its obligations. The Agency shall not be liable for any costs, charges or losses sustained by the Client arising directly from any failure of the Client to fulfill its obligations under this Agreement. All copy provided by the Client shall be in electronic, Macintosh-compatible format suitable for typesetting. Where photographs, illustrations or other visual materials are provided by the Client, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. The Client shall pay all fees and expenses required to bring nonconforming
materials up to such standards. The Client warrants that all assets, concepts, materials, specifications, information and instructions
provided by Client or its agents may be exploited pursuant to this Agreement and any applicable Statement of Work, including on the Internet, without violating any laws and without violating or infringing any rights of any third parties.
6. Approval of Work
Work will not commence until the signed SOW has been received. Within five business days following receipt of any deliverables, the Client will provide Agency with either (a) written approval and acceptance of such deliverable (which will not be unreasonably withheld), or (b) a written list of reasonable modification guidelines that will bring the deliverables into compliance with the SOW. Each deliverable hereunder will be deemed accepted by the Client if, within five business days of its delivery to the Client, the Client does not receive the foregoing written notice.
The Client’s written approval of any deliverables, materials, plans or other Work created or produced by the Agency in the course of the provision of the Services, or any cost estimate, will constitute the Agency’s authority to purchase, publish, and make contracts for talent, space, time and other facilities and otherwise to do any other act or thing which the Agency considers it reasonable to do in order to carry out its obligations under this Agreement or any Statement of Work. The Agency will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client’s instructions and the Agency will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation.
Unless otherwise stated in this Agreement or agreed by the parties in writing, the Agency’s contracts with suppliers in respect of the Services shall be made in accordance with suppliers’ standard terms or such other terms as the Agency is able to negotiate with the relevant supplier. The Agency shall act as principal in all such contracts, but all rights and liabilities as between the Client and the Agency shall correspond to those between the Agency and the various suppliers under such conditions, including in particular any service levels and any rights of amendment, omission and cancellation. The Agency shall use reasonable efforts to procure best commercial terms for the Client, and on the Client’s written request the Agency shall supply the Client with the relevant terms and conditions. Notwithstanding the above, unless the parties agree to different arrangements in writing, the Agency shall negotiate
with any talent or celebrities (if applicable) on behalf of the Client, but the Client shall contract with such suppliers directly in order to derive maximum benefit from the relationship.
8. Legal Clearances and Indemnification
The Client is responsible for obtaining all legal clearances required for the performance of services hereunder. The Client shall indemnify, defend (at its own cost and expense) and hold Agency and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Client.
9. Liability of Agency
Agency shall not be held responsible for delays or nonperformance caused by activities or factors beyond its reasonable control, including delays and nonperformance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Agency or by Client. Agency shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. Agency’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.
10. Confidential Information; Non-Solicitation
Confidential information is that which relates to the Client’s or Agency’s research, development, trade secrets or business affairs and includes, in the case of Agency’s confidential information, concepts presented to, but not selected by, the Client; it does not include information that is generally known or easily ascertainable by third parties. Agency and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is
independently developed by the recipient. Neither party shall solicit the other’s employees, independent contractors or consultants or engage them in any work independent the parties’ relationship under this Agreement during the term of the Agreement and for two years thereafter.
11. Rights, Ownership and Usage
Subject to Agency’s receiving full payment under this Agreement, Agency assigns to the Client, without representation or warranty, all rights, title and interest Agency may have in any work specifically created by Agency for the Client pursuant to this Agreement, except that:
(a) Agency may use and distribute such work as part of its portfolio for promotional purposes;
(b) Agency shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “Work”) which have been presented to the Client but not included in the final work product;
(c) Agency shall own and retain all rights to any technology, technical documentation, inventions, algorithms, software, architecture, logic, navigation, 3d modeling files, animation files and other source files for front-end deliverables, computer programs, source codes, game engines or other backend and background elements, files and features incorporated into or utilized by the Work (collectively, “Background Technology”).Unless the parties agree otherwise in a written and signed Statement of Work, Agency shall retain ownership of any and all Background Technology, including any and all associated intellectual property rights. Agency hereby grants to Client a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform Agency’s Background Technology, in compiled machine-readable object code form only, to the extent incorporated into deliverables provided hereunder strictly for the purposes and in the territories set out in the applicable Statement of Work. Use of Background Technology for any other project, on any other website or in any other medium shall be subject to additional fees and licenses which may be granted or withheld by Agency in its sole discretion; and
(d) If the Client desires to utilize any of the Work, whether accepted or rejected by the Client hereunder, for any marketing campaign, promotion, product, service, advertisement or any other purpose outside the scope of this Agreement, then the Client shall hire Agency to design, create, develop, market and otherwise implement such work. The Client may solicit or hire a third party to implement such Work if, and only if, Agency declines to do so and such third party is hired on terms in no way more beneficial than the terms first offered to Agency.
(e) Subject to the services provided hereunder, Agency shall retain all rights to any illustrations and other proprietary artwork, if any, listed in any SOW (each item, a “Design”), provided that Agency shall not, without Client’s prior written consent, use, license, sell or otherwise authorize the use of any Design for use in connection with the marketing or promotion of any consumer product, in any format or medium, electronic or otherwise, for a period of one year from date on which such Design is first published.
Except as otherwise set forth in this Section 11, Agency grants Client the limited, exclusive, irrevocable right to use the Designs as set forth in any SOW.
In addition to all other services set forth herein, Agency may provide the Client with hosting services in accordance with the Hosting terms set forth in the SOW. In consideration for such hosting services, the Client shall pay Agency the Monthly Hosting Fee set forth in the SOW.
13. Term and Termination
Either party may terminate this Agreement for any reason upon giving 30 days’ prior written notice to the other. Upon termination of this Agreement by Client without Agency’s fault or consent, Client shall pay Agency, in addition to all the fees earned by Agency pursuant to the terms hereof, an early termination fee equal to 75% of the total remaining fees payable to Agency hereunder (as specified in the SOW), plus any and all expenses and third-party costs reasonably incurred by Agency through the effective date of cancellation. At Agency’s election, Client’s delay of work under this Agreement for a cumulative period of more than 30 days without Agency’s fault or consent shall be considered a termination of this Agreement by Client within the meaning of the immediately
preceding sentence. If Client desires to terminate this Agreement due to Agency’s fault, Client shall give Agency written notice detailing the nature of Agency’s fault and possible remedies, whereupon Agency shall have a reasonable period of time (but in no event less than 30 days) to cure such fault. Termination by Client without providing the foregoing notice and cure period shall be considered “termination without Agency’s fault’ as described above.
14. BILLING, REFUND POLICY & CREDIT CARD CHARGEBACKS:
a. Refund Policy. Any and all payments made by Client to Agency are governed by a strict no-refund policy. The reasons for this include, but are not limited to the fact that Agency, at the time of contract engagement with Client, often immediately incurs service fulfillment-related expenses such as the purchase of various tools, services, time, and labor required in order to provide The Services to Client (collectively, “Fulfillment Expenses”). Agency frequently enter into no-refunds contracts with providers of these Fulfillment Expenses, meaning that any issuance of refunds would cause Agency unacceptable financial losses.
b. Credit Card Chargebacks. Client agrees that they may not, at any time and for any reason whatsoever, attempt a chargeback of any credit card payments made to Agency. In the case that Client attempts to chargeback a credit card payment made to Agency, Client understands and agrees that they will be liable for a penalty fee equal to 3 times the original charges that were charged back, in addition to any and all expenses or losses incurred by Agency in its pursuit to defend and/or reverse the chargeback attempt, including but not limited to legal fees, time spent documenting and communicating about the matter with Client, banks, legal experts, etc. In the event that the payment form on file cannot be charged and You as Client do not deliver payment to Agency within ten (10) days as agreed to in this marketing service agreement, You the Client agree to compensate the Agency for triple (3 times) damages thereafter. In the event of a default, the default notice will act as a lien upon the nonexempt property of each Client and officer(s) of the Client’s business, as follows: Nonexempt household goods, real estate; and future earnings; any and all other personal property. Said lien will be perfected through a UCC Financing Statement after presenting an invoice for the violations after the receipt of the invoice. If the balance of said invoice is not paid within 10 days of receipt, a Notice of Default with Opportunity to Cure will be issued. Should the balance of the invoice still remain in default, a notice of Default will be sent. You the Client waive all rights of future presentment, and tacitly consent and agree to the filing of the UCC Financing statement making the Agency the Secured-Creditor/Secured-Party and You the Client the debtor. You the Client tacitly consent and agree to be bound by contract to the debt collector of the Agencies choosing.
c. Terms of Payment, Requirement for Valid Form of Payment On-File. Agency offers “Due Upon Receipt” Terms for all Client invoices with no grace period for accounts in arrears. Client agrees that they will maintain with Agency, at all times, a valid form of payment (e.g. credit card or bank information) that Client gives Agency permission to use for charges related to The Services. Such charges by Agency will be made in advance of services being rendered unless otherwise agreed between the parties in writing. Agency reserves the right to suspend or cancel The Services during any period where charges are owed or no valid form of payment for Client exists, until such time as a valid, chargeable form of payment has been provided by Client and verified by Agency as valid for the outstanding amount owed. Furthermore, Client agrees that Agency shall not be liable for any losses or damages of any kind whatsoever related to any downtime of services resulting from delayed payment of charges by Client, for any reason.
d. Penalty for Early Termination and Chargebacks . Client understands that Agency incurs substantial fees and engages in substantial financial commitments when setting up data and marketing services for Client, expenses that are amortized via monthly services fees that are paid across the initial minimum commitment term of a campaign. Furthermore, to provide services to Client, Agency frequently enters into long-term commitments with subcontractors and/or vendors to provide services over the minimum commitment period of the contract, and is therefore committed for that period. Additionally, Agency’s pricing to Client is based and contingent on Client satisfying the minimum contract period, and failure to do so will cause Agency financial harm/loss. Due to the above considerations, any early termination of contract by Client not mutually agreed upon ahead of time in writing by both Agency and Client, and/or failure by Client to pay timely for services shall result in an immediate early termination penalty equal to the remaining monthly services fees due under the agreement — regardless of whether Client permits Agency to provide such services, or Client facilitates Agency in the necessary logistics to provide such services to Client. For example, if Client has 6 months remaining in their marketing services agreement for which it is paying $1500/mo in fees, and terminates wrongfully and early, Client shall owe the full remaining amount due to Agency of $1500 x 6 = $9000 and be billed for this amount immediately using the payment form on file. In the event that the payment form on file cannot be charged and You as Client do not deliver payment to Agency within ten (10) days as agreed to in this marketing service agreement, You the Client agree to compensate the Agency for triple (3 times) damages thereafter. In the event of a default, the default notice will act as a lien upon the nonexempt property of each Client and officer(s) of the Client’s business, as follows: Nonexempt household goods, real estate; and future earnings; any and all other personal property. Said lien will be perfected through a UCC Financing Statement after presenting an invoice for the violations after the receipt of the invoice. If the balance of said invoice is not paid within 10 days of receipt, a Notice of Default with Opportunity to Cure will be issued. Should the balance of the invoice still remain in default, a notice of Default will be sent. You the Client waive all rights of future presentment, and tacitly consent and agree to the filing of the UCC Financing statement making the Agency the Secured-Creditor/Secured-Party and You the Client the debtor. You the Client tacitly consent and agree to be bound by contract to the debt collector of the Agencies choosing.Client shall be solely responsible for any and all expenses incurred by Agency in attempting to collect this debt, in addition to any applicable interest charges.
e. Automatic Use of Payment Form(s) On File. We will automatically use your forms of payment on file (e.g. credit/debit card, EFT/bank account info, etc.) to purchase products and/or services according to the payment schedule specified in your agreed-upon services with us. These types of payments include, but are not limited to:
- Monthly Services and Renewable Product Licenses/Subscriptions. We will initiate payment in a reasonable amount of time after we receive this signed form for any applicable initial service setup fees, and then for your services and/or products according to the billing/subscription schedule outlined in your authorized proposal and/or invoice.
- Advertising Platform Ad Spend Charges. Your card will be setup under an account in your name and billed directly by the platform you are advertising on based on the monthly advertising spend budget you have specified for us to manage. While we are not responsible for the billing/charging actions or methods of these 3rd party companies (e.g. Facebook, Google, Microsoft, LinkedIn, etc.) and you should check with those companies’ websites for specific questions, they typically bill for ad spend in multiple, smaller amounts throughout the month as your account’s billing threshold is reached (this threshold can vary between platforms and accounts; e.g. every $25, $500, $750, etc. spent for traffic on their site). [Important: Please ensure that your card can accept charges for any ad spends involved with your services with us. If your card issuer/bank declines the payment, your advertising campaign will pause. Note that this may have a significantly detrimental effect on your advertising campaign, and should thus be avoided at all costs.]
- Miscellaneous Consultative & Other Hourly Service Fees. We will use your payment information once per month for any billable hours (logged and billed to the closest half-hour/30 mins) that have accrued for services that go beyond the scope of any monthly services you are paying for with us. In some cases have been generated from email or phone requests from authorized parties at, or connected with, your business to our team.
- Cancellation Policy. You may request cancellation of your services with us at any time using this form on our site. We require thirty (30) days notice for cancellations of services, delivered electronically using our form above (other method of notice will not be considered valid for the purposes of calculating the actual termination of services date). Please keep in mind that some marketing services & campaigns carry minimum initial terms, and in those cases you will be responsible for payment of the remainder of the minimum initial billing term based on the original proposal or agreement you signed or the default billing & payment terms defined herein. If you cancel services prior to the end of your current term, any fees for the remainder of that term will be considered immediately due and payable and charged to your form of payment on file. We reserve the right to refuse or terminate existing services to anyone for any or no reason, unconditionally. In the event of our termination of service, you will be given a minimum of twenty-four (24) hours’ notice of such termination. Please read the terms & conditions on that page for further information.
We strive to maintain full transparency regarding our billing policies and practices. If you have any questions at all, please contact us at accounting (at) fuel-ai (dot) com.
15. Governing Law; Jurisdiction
This Agreement shall be interpreted and construed in accordance with the laws of the State of Utah, without regard to any conflict of laws principles. Each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in Utah for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement. The prevailing party in any such action or proceeding shall be awarded all of the costs and fees incurred by it reasonably related thereto, including the fees of its attorneys.
Effective Date 8/1/2023