Terms

MASTER SERVICES AGREEMENT

Effective as of November 1^st,2024

CHR Creative, LLC

 

This Master Services Agreement (this “MSA”) is made as of __________________, 20____ by and between CHR Creative, LLC, an Oregon limited liability company providing business consulting and information technology solutions (“CHR”), and                                                                                           (the “Client”). For valuable consideration, the sufficiency of which is hereby acknowledged, CHR and the Client agree as follows:

CHR SERVICES

 

1.              Scope of Work; Term.  CHR and Client have electronically or physically signed an automated estimate or scope of work agreement that CHR agrees to perform for Client (the “Scope of Work”). The Scope of Work, and any amendments or modifications thereto, are incorporated into this MSA by reference as if originally set forth herein. The Client acknowledges and agrees that any requests for variations from the Scope of Work described may cause the Client to incur additional costs as reasonably set by CHR. The term of this MSA (“Term”) is set forth in the Scope of Work. The Term will automatically renew for another Term of equal duration unless terminated by either CHR or Client in accordance with Section 12, below.

 

2.              Payment for Services.   In exchange for CHR completing the Scope of Work, Client shall pay to CHR the Project Fee (equal to a lump sum amount plus any costs incurred by CHR in completing the Scope of Work) in the amounts set forth in the Scope of Work, payable as follows:

 

For monthly services, invoices will be sent to Client monthly. Payment is due by the 15th day of the billing month.

 

For one-time items, the invoice will be sent to Client with payment terms noted on the invoice.

 

For equipment, software, or implementation projects, unless otherwise mutually agreed in writing, fifty percent (50%) of the estimated Project Fee is due upon execution of this MSA. CHR reserves the right to delay the commencement of services until CHR receives this payment from the Client. The balance of the Project Fee is due upon completion of the project.

 

CHR reserves the right to (i) raise monthly service fees by no more than five percent (5%) each year, and (ii) adjust SaaS and IaaS pricing as providers change product and software costs.

 

If the Client pays its invoices by credit card, CHR may charge the Client for a credit card processing fee of up to 4.00% of the total invoice.

 

Invoices not paid within fifteen (15) days of the date due will incur interest at the rate of 1.50% per month from the date such invoice was due.  CHR reserves the right to withhold delivery of all products and services until the Client has paid its invoice, costs, and accrued late fees in full. 

 

For CHR support of Client’s unconventional installation/configuration, outside the Scope of Work, CHR’s services will be billed hourly at the rates forth in the Scope of Work.

STANDARD TERMS AND CONDITIONS

 

3.              Items Excluded from Scope of Work. CHR will not support illegal installations or installations that do not follow manufacturer requirements. The following are excluded from CHR’s Scope of Work: (i) illegal or unconventional installation/configuration (i.e., not within the manufacturer's product guidelines or EULAs) of devices/software, and (ii) items deemed End of Life (EOL) or End of Support (EOS) by the manufacturer/developer, including but not limited to hardware, software, and operating systems. If, upon the Client’s request, CHR agrees to provide support for Client’s unconventional installation/configuration, CHR’s services will be billed hourly at the rate set forth in the Scope of Work.

 

4.              Additional Services; Services Excluded.  At any time during the Term of this MSA, the parties may amend the Scope of Work to include additional services.  Any amendment must be in writing and signed by both parties, with signatures sent by DocuSign or other electronic transmission considered as original . Unless explicitly outlined in the Scope of Work, or otherwise agreed to pursuant to this Section 4, CHR has no duty to perform any other services on the Client’s behalf.

 

5.              Suspension of Services.  If the Client is in default of any of its obligations set forth in this MSA, CHR may suspend its performance of all services and support included in the Scope of Work until the Client cures its default.  CHR will not be liable for any damages incurred by Client as a result of Client’s breach of this MSA.

 

6.              Normal Service Hours; After Hours Service. Except for critical services and site affecting outages, as defined in Section 8, below, CHR will perform the Scope of Work during “Normal Service Hours”; 8:00 AM to 5:00 PM (Pacific Time) Monday-Friday, excluding federal holidays. All services provided by CHR outside of Normal Service Hours constitute “After Hours Service” outside the agreed Scope of Work. The Client agrees to pay the following additional fees for After Hours Service:  time and a half (1 ½X) on weekdays and double time (2X) on weekends and federal holidays. 

 

7.              Client Communication.  The parties acknowledge and agree that CHR’s ability to stay on schedule and within budget is dependent on the Client’s cooperation.  The Client shall cooperate with CHR by providing timely and accurate responses to CHR’s communications and requests for information.  The Client acknowledges and agrees that, if the parties make any alterations to the Scope of Work, or if the Client fails to provide timely and accurate communication, CHR may not be capable of providing timely service to the Client.  The Client may also incur additional costs if the Client requests changes to work product that the Client has previously approved.

 

8.              Reliance on Client Information. The Client understands that CHR is relying on Client-provided information, systems, equipment, materials and data (collectively, the “Client Information”). CHR has no duty to independently verify the accuracy or completeness of the Client Information and shall not be liable in any fashion for any errors in the services provided by CHR due to inaccuracies or omissions in the Client Information or the Client’s failure to timely cooperate with CHR’s performance of the Scope of Work.

 

9.              Client Information Ownership. The Client represents and warrants that it has full ownership rights in, and the required qualifications to procure, all information and intellectual property contained in the Client Information; waives against CHR or those for whom CHR might be responsible any claims related to Client Information; and shall indemnify, defend and hold CHR and those for whom CHR might be responsible harmless from and against all claims, demands, damages, or other harm of any nature related to claims that Client did not have rights to the Client Information. The Client represents and warrants that it is in full compliance with all third-party licenses relevant to the scope of this MSA.  Client acknowledges and agrees that Client’s foregoing representations constitute a material consideration to CHR, and CHR is relying on such representations, in entering into this MSA.

 

10.           Retention of Others; Subcontracting; Assignment by CHR. CHR may retain independent contractors, subcontract any portion or the whole of the Scope of Work, obtain the assistance of other consultants, experts, vendors, or other service providers, or assign the whole of the Scope of Work as CHR reasonably determines might be required. CHR shall be solely responsible for hiring, retaining, or otherwise engaging such other providers. CHR is solely responsible for selecting and providing the personnel or subcontractor(s) who provide the Scope of Work.

 

 

11.           Critical Support Services Response Times. When the Client reports a support issue, CHR will use its best efforts to respond within the timeline listed in the table below. CHR will promptly triage the Client’s issue, make a commercially reasonable determination regarding the severity of the problem as described in the following table, and schedule the most appropriate response.

 

 

12.           Termination. Either party may terminate this MSA upon sixty (60) days’ written notice to the other (the “Notice Period”), specifying the date of termination (“Termination Date”).  During the Notice Period, CHR and Client will continue to perform their respective service and payment obligations under this MSA. If Client terminates this MSA prior to the expiration of the Term, Client will remain obligated to pay CHR all amounts due through the end of the Term; provided, however, that after expiration of the Notice Period, regular service fees (not including fees for Infrastructure as a Service (IaaS) & Software as a Service (SaaS)) for the remainder of the Term will be payable at a reduced rate equal to fifty percent (50%) of the Client’s then current monthly service fees. On or before the Termination Date, the Client shall pay all fees and associated costs owed to CHR for the remainder of the Term. If CHR elects to terminate this MSA prior to the expiration of the Term, Client will remain obligated to pay CHR only the amounts due through the end of the Notice Period.

 

13.           Failure to Perform. If CHR fails to perform under this MSA, Client may not terminate this MSA for CHR’s failure unless Client has given notice thereof to CHR specifying the failure with reasonable particularity and the failure is not cured within thirty (30) days thereafter or such greater time as may be reasonably necessary to cure the failure. A failure which cannot reasonably be cured within the thirty (30) day period shall be deemed cured within that period if work necessary to cure the failure is commenced within such time and proceeds diligently thereafter until the failure specified in Client’s notice is cured. If CHR fails to perform under this MSA and such failure continues for more than thirty (30) days after receiving notice thereof from Client, or, if such failure cannot reasonably be cured within said thirty (30) day period and CHR fails to commence to cure such failure with all due diligence and dispatch within said thirty (30) day period, or having commenced such cure, shall fail to diligently prosecute such cure to completion, then Client shall have the right to terminate this MSA in accordance with Section 12, above, but Client will remain obligated to pay CHR only the amounts due through the end of the Notice Period.
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14.           No Solicitation: During the course of this MSA, and for two (2) years after the expiration of the Term of this MSA, the Client may not directly or indirectly attempt to solicit any employees, consultants, subcontractors, or agents of CHR.

15.           Infrastructure as a Service / Loaner / Rental Equipment. Client agrees that equipment provided as Infrastructure as a Service, loaned, or rented to Client, will be returned in good working order at the end of the service period. If the equipment is not returned or is damaged, Client agrees to pay for a replacement at full replacement value.  Client further agrees to pay any monthly service fees associated with the loaned/rented equipment.

 

16.            Confidentiality. Each party to this MSA shall keep secret and retain in the strictest confidence any and all Confidential Information that is acquired in the process of acting under this MSA. The parties may not disclose any Confidential Information to any other individual or entity. For purposes of this Section, the term “Confidential Information” includes without limitation, information pertaining to the subject matter of the Scope of Work, other proprietary business practices, methods, and processes and any information identified as confidential or proprietary or that a reasonable person would consider confidential based on the circumstances surrounding disclosure or that would not reasonably and ordinarily be disclosed outside of each party’s normal business operations. Notwithstanding, a party that receives Confidential Information may disclose Confidential Information if: (a) the information is reasonably necessary to evaluate that party’s rights and obligations under this Agreement, but then only to that party’s agents, accountants, financers, and lawyers; (b) the information is generally known to the public; (c) the receiving party receives written approval from the disclosing party; and (d) the information is required to be disclosed by applicable law or regulation, or by order of a court or regulatory body.

 

17.           Miscellaneous.

 

17.1.      Relationship of the Parties.  This MSA does not create any partnership or joint venture between CHR and the Client.  The parties acknowledge and agree that CHR is an independent contractor and is performing services under this MSA in that capacity.

 

17.2.      Amendments.  This MSA may not be amended or modified except by written agreement of both parties.

 

17.3.      Indemnification.  Unless caused by CHR’s gross negligence or willful misconduct, the Client agrees to defend, indemnify, and hold harmless CHR, its subsidiaries and affiliates, its successors and assigns, and all of its agents, employees, directors, officers, and partners, against any claims, causes of action, costs, expenses, liabilities, or damages suffered by the Client, arising out of or in connection with (a) any services provided by the Client, its employees and other contractors to the Client’s customers or clients; (b) CHR recommendations which Client declined to implement; (c) cyber-terrorism; or (d) any breach of this MSA by the Client and Client hereby waives all claims in respect thereof against CHR.

 

17.4.      Mediation and Arbitration.  Any claim, controversy, or dispute arising out of or in connection with this MSA shall first be submitted to mandatory, non-binding mediation in Portland, Oregon with a neutral, third party mediator mutually selected by the parties.  Client and CHR shall share equally the costs of mediation, including the mediator’s time and expenses.  If mediation is not successful, Client and CHR shall resolve the issue through mandatory and binding arbitration in Portland, Oregon with an arbitrator chosen by and through Arbitration Service of Portland, Inc.  A single arbitrator shall conduct the proceedings as described below; however, to the extent applicable law requires otherwise, the arbitration will be conducted in accordance with the rules of Arbitration Service of Portland then in effect.  The arbitrator shall conduct the arbitration proceedings in private, and except to the extent necessary to enforce any award in court, the arbitration proceedings and results shall be confidential.  The parties shall share equally the costs of arbitration, including fees resulting from the arbitrator’s review of any pre- and post-hearing motions, briefs, or other documents or pleadings; provided, however, that each party is initially responsible to pay their own attorney fees and other out-of-pocket costs associated with arbitration, including any filing fees.  The parties further agree that the decision of the arbitrator shall be final and binding, and that judgment thereon may be entered in any court having jurisdiction.  In reaching a decision, the arbitrator shall have no authority to change or modify this MSA.

 

17.5.      Small Claims Court.  Notwithstanding any contrary provision in Section 13.4 above, any claims between Client and CHR that are within the jurisdiction of the Small Claims Court of Clackamas County, Oregon, shall be brought and decided there, in lieu of mediation or arbitration.

17.6.      Applicable Law; Venue.  This MSA shall be construed and enforced under and in accordance with the laws of the State of Oregon.  Each party consents and submits to the personal jurisdiction and venue of any state court located in Clackamas County, Oregon, for any action, suit, or proceeding arising out of the subject matter of this MSA. 

 

17.7.      Attorneys’ Fees.  In any arbitration or judicial proceeding arising from, or related to, this MSA, the prevailing party is entitled to an award of its reasonable attorney fees and costs, including witness fees.  Notwithstanding, this provision does not apply to any mediation or arbitration proceeding initiated pursuant to Section 13.4 of this MSA.

 

17.8.      Force Majeure.  If either party is delayed or prevented from performing that party’s obligations under this MSA by reason of strike, lockouts, labor troubles, power failure, riots, insurrection, governmental action or inaction, war, severe weather, acts of God, or any other cause beyond that party’s control, the period of delay or prevention shall be deemed added to the time period provided for the performance of any such obligation by the party so delayed. 

17.9.      Waiver.  Any provision or condition of this MSA may be waived at any time, in writing, by the party entitled to the benefit of the provision or condition.  Waiver of any breach of any provision will not be a waiver of any succeeding breach of the provision, a waiver of the provision itself, or a waiver of any other provision.

 

17.10.   Notice.  Any notice required or permitted to be given pursuant to this MSA shall be in writing and sent by registered or certified mail, return receipt requested, or by generally recognized, prepaid overnight air courier services, to the addresses set forth below for each party:

 

If to CHR:                                                      If to the Client:

CHR Creative, LLC                                        _______________________

Attn: Bryan Christensen                                 _____________________

12300 SW Mallard Way                                 _____________________

Milwaukie, Oregon 97222                              _____________________

bryan@chrcreative.com                                 _____________________

 

 

17.11.   Assignment.  The Client may not assign its rights or obligations under this MSA without the prior written consent of CHR.

 

17.12.   Successors and Assigns.  This MSA is binding on and inures to the benefit of each party and its respective heirs, personal representatives, successors, and assigns.

 

17.13.   Severability.  If any provision of this MSA is deemed to be invalid or unenforceable in any respect and for any reason, the remaining provisions shall remain in full force and effect.

 

17.14.   Authority.  Each party warrants that it has the authority to enter into this MSA and that the person signing on its behalf is duly authorized to do so.

 

17.15.   Entire Agreement.  This MSA, together with the attached exhibits which are hereby incorporated into this MSA by reference, constitutes the entire agreement and understanding of the parties with respect to the subject matter of this MSA, and supersedes all prior understandings and agreements, oral or written, between the parties.

 

17.16.   Further Assurances.  Each party agrees to execute and deliver any other documents necessary or desirable to accomplish the intent and purpose of this MSA.

 

17.17.   Counterparts.  This MSA may be signed in multiple or counterpart copies, or with signatures sent by facsimile or electronic transmission, each of which will be considered an original and which together form one agreement.