Master Services Agreement

This master subscription agreement (this “Agreement”), dated as of the date Client clicks to accept or agree to these terms of service (the “Effective Date”), is by and between SV Consulting LLC d/b/a Optimize5, a California limited liability company located at 1326 San Carlos Road Arcadia, CA 91006 (“Optimize5”) and the person, firm, or entity identified as retaining Optimize5’s services, either in the signature block below (if signed on paper) or in the electronic acceptance form provided or made available by Optimize5 (in either case, the “Client” and, together with Optimize5, the “Parties”, and each a “Party”).

WHEREAS, Optimize5 has the capability and capacity to provide certain subscription-based online marketing consulting services; and

WHEREAS, Client desires to retain Optimize5 to provide the said services, and Optimize5 is willing to perform such services under the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Optimize5 and Client agree as follows:

  1. Services. Optimize5 shall provide to Client the subscription-based services (the “Subscription Services”) set forth in one or more subscription schedules to be issued by Optimize5 and accepted by Client (each, a “Subscription Schedule”) from time to time, each of which is, by this reference, made a part of and incorporated in its entirety herein. Additional Subscription Schedules shall be deemed issued and accepted only if signed by Optimize5 and the Client.
  2. Fees and Expenses
    1. Fees. In consideration of the provision of the Subscription Services by Optimize5 and the rights granted to Client under this Agreement, Client shall pay the fees (the “Fees”) set forth in the applicable Subscription Schedule. Payment to Optimize5 of such fees and the reimbursement of expenses pursuant to this Section shall constitute payment in full for the performance of the Subscription Services. Unless otherwise provided in the Subscription Schedule, said fee will be payable upon receipt by the Client of an invoice from Optimize5 but in no event more than thirty (30) days following the date of such invoice.
    2. Expenses. Client shall reimburse Optimize5 for all reasonable expenses incurred in accordance with the Subscription Schedule upon receipt by the Client of an invoice from Optimize5 accompanied by receipts and reasonable supporting documentation.
    3. Taxes. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Optimize5’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
    4. Late Payment. All late payments shall bear interest at the lesser of the rate of two percent (2%) per month or the highest rate permissible under California law, calculated daily and compounded monthly. Client shall also reimburse Optimize5 for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Optimize5 reserves the right to halt performance of Subscription Services and withhold deliverables in the event of any late payment by Client; this shall in no way constitute a breach of this Agreement by Optimize5.
  3. Client Responsibilities.
    1. Client acknowledges that it is responsible for performing its obligations under the Agreement in a reasonable and timely manner. Optimize5 is not responsible for any delays in performing the Subscription Services due to Client’s failure to meet its obligations under this Section 3. Client shall:
      1. Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Contact”), with such designation to remain in force unless and until a successor Client Contact is appointed.
      2. Require that the Client Contact respond promptly to any reasonable requests from Optimize5 for Client-owned content, materials, instructions, information, credentials, or approvals (“Client Content”) required by Optimize5 to provide the Subscription Services, in forms as stated by Optimize5 and, if requested by Optimize5, suitable for reproduction or incorporation into any deliverables to be created by or on behalf of Optimize5.
  • Cooperate with Optimize5 in its performance of the Subscription Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable Optimize5 to provide the Subscription Services.
  1. Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Optimize5’s provision of the Subscription Services and not take any actions that would inhibit or impair Optimize5’s ability to render the Subscription Services.
  1. Security and Management of Client Credentials. In the course of Optimize5’s provision of Subscription Services, Client may be required to provide Optimize5 with personally identifiable information, including contact information, usernames, and passwords (“Credentials”). Client, not Optimize5, shall be responsible for maintaining and protecting Client’s Credentials in connection with the Subscription Services. If Client’s contact information, or other information relating to Client’s username or password changes, Client shall notify Optimize5 promptly and keep such information current. Client shall be solely responsible for any activity using Client’s Credentials, whether or not Client authorized that activity. Client shall immediately notify Optimize5 of any unauthorized use of Client’s Credentials or if Client’s email or password has been hacked or otherwise compromised. If Client discovers that a third party is using Client’s Credentials without consent, or Client discovers any other breach of security, Client shall notify Optimize5 immediately.
  2. Compliance with Third-Party Terms of Service. In connection with Optimize5’s provision of Subscription Services, Client agrees it shall adhere to the terms of service of all major review sites (“Review Site Terms”), including, but not limited to, Google, Facebook, and Yelp, and such Review Site Terms are hereby incorporated herein. Optimize5 does not guarantee and Client shall not hold Optimize5 liable for the removal of any posts that are removed by a third party’s website for any alleged violations of that third-party website’s Review Site Terms. Client further agrees as follows:
    1. Client shall not implement any form of review gating. For the purposes of this agreement, “review gating” means any process by which companies send a message to customers asking if their experience was positive or negative and those who had a positive experience are directed to leave an online review while those who had a negative experience are directed to leave comments in any manner by which such negative reviews are not made public.
    2. When soliciting reviews using any product or service provided by Optimize5, Client shall provide all recipients of Client’s services the same options to provide feedback, regardless of such recipient’s sentiment. This applies to review requests sent via standard review templates, custom email templates, and surveys.
  • Client shall fully comply with sites such as Yelp that prohibit review solicitation and will not misuse any Optimize5 products or services to bypass review such sites’ policies.
  1. If Client attempts to circumvent any Review Site Terms, Optimize5 shall notify Client and allow them 30 days to take corrective action. Should Client fail to cure such non-compliance within such 30-day notice period, Optimize5 shall have the right to terminate this Agreement and shall have no further obligation to Client.
  1. Third-Party Software Licenses. Client acknowledges that Subscription Services provided by Optimize5 may incorporate certain third-party software (“Third-Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third-Party Software. Nothing in this Agreement shall limit Client’s rights under, or grant Client rights that supersede, the terms and conditions of any applicable license for such Third-Party Software.
  1. Changes to the Project; Delays.
    1. If the Client wishes to change the scope of the Subscription Services set forth in any Subscription Schedule, Client will make a written change request (“Change Request”). Within a reasonable time after receipt by Optimize5 of a Change Request from Client, Optimize5 will provide Client with any revisions to fees or scheduling resulting from the proposed Change Request. If Optimize5 and Client agree to all such revisions, Optimize5 will modify the applicable Subscription Schedule to such reflect such revisions; provided, however, that any such modified Subscription Schedule shall not be effective unless it is signed by both Parties.
    2. In the event that Client delays in providing Optimize5 with any approvals, content, or other materials or actions necessary for Optimize5 to provide the Subscription Services contemplated under this Agreement (collectively, “Required Approvals or Materials”), Optimize5 will have, at Optimize5’s sole discretion, the right to make reasonable modifications to the relevant delivery schedule. The Parties agree that Optimize5 will not be liable for any delay in performance related to Client delays in providing such content or other material or actions, and any such delay shall not constitute a breach of this Agreement by Optimize5.
    3. If additional Subscription Services, Fees, or Expenses are required due to Client’s delay, inaccurate information or mistake, Optimize5 will have the right, in its sole discretion, to modify the applicable Subscription Schedule to reflect any reasonable changes in costs or scheduling that result.
  2. Approval of Deliverables. When Optimize5 submits any deliverable required to provide the Subscription Services, Client will approve or reject that deliverable in writing. If the Client does not provide such an approval or rejection within five business days of receiving a deliverable, that deliverable will be deemed accepted. If Client rejects the deliverable, Client will provide feedback and give Optimize5 a reasonable amount of time to make any necessary changes to the deliverable so that the deliverable conforms to the relevant specification set forth in the Subscription Schedule.
  3. Client’s Representations and Warranties. Client represents and warrants that:
    1. It has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
    2. All information and materials provided to Optimize5 by Client will be accurate and complete, will comply with all applicable laws, statutes, and regulations, and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party; and
    3. The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action.
  4. Optimize5’s Limited Warranty
    1. Optimize5 warrants that it shall perform the Subscription Services:
      1. In accordance with the terms and subject to the conditions set forth in the respective Subscription Schedule and this Agreement.
      2. Using personnel of industry standard skill, experience, and qualifications.
  • In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
  1. Optimize5’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows:
    1. Optimize5 shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Optimize5 cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with this Agreement.
    2. In the event the Agreement is terminated pursuant to the foregoing Section, Optimize5 shall within thirty (30) days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Service or Deliverables, less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
  • The foregoing remedy shall not be available unless Client provides written notice of such breach within ten (10) days after delivery of such Service or Deliverable to Client.
  1. OPTIMIZE5 MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, NEITHER OPTIMIZE5 NOR ANYONE ASSOCIATED WITH OPTIMIZE5 REPRESENTS OR WARRANTS THAT THE SERVICES WILL COMPLY WITH ANY REGULATORY RULES OR REQUIREMENTS, INCLUDING, BUT NOT LIMITED TO RULES OR REGULATIONS GOVERNING ONLINE ADVERTISING. CLIENT ACKNOWLEDGES AND AGREES THAT OPTIMIZE5 DOES NOT STIPULATE OR GUARANTEE SPECIFIC OR OVERALL RESULTS OR RETURNS FROM THE SERVICES PERFORMED OR PROVIDED BY OPTIMIZE5 UNDER THIS AGREEMENT.
  1. Intellectual Property.
    1. Except for any Confidential Information of Client or Client Content, all intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to (i) all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Optimize5 in the course of performing the Subscription Services (collectively, the “Deliverables”), and (ii) all third-party software, content, documents, data, methodologies, and other materials provided by or used by Optimize5 to perform the Subscription Services, or developed or acquired by Optimize5 independent of this Agreement (the “Pre-Existing Materials”) shall be owned by Optimize5 and its licensors.
    2. Upon final payment of all amounts due to Optimize5 under this Agreement and provided that Client is not in breach of this Agreement, Optimize5 hereby grants Client a license to use all Intellectual Property Rights in the Deliverables and the Pre-Existing Materials free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis solely to the extent necessary to enable Client to make reasonable and customary use of the Deliverables and the Subscription Services.
    3. All Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Client hereby grants to Optimize5 a limited, non-exclusive, non-transferable, non-sub-licensable, and non-assignable royalty free license (i) during the Term to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, distribute, perform, display, and otherwise use Client Content as necessary to render the Subscription Services to Client under this Agreement, and (ii) on a perpetual and worldwide basis to use and display Client’s name and logo and any Client Content as incorporated into the Deliverables on Optimize5’s website and in Optimize5’s marketing materials for the sole purpose of promoting Optimize5’s business.
    4. Optimize5 purchases and manages the software licenses associated with the Subscription Services provided to Client by Optimize5. In the event Optimize5 provides Client with access to such software, Client agrees it shall use the Subscription Services internally solely for the purpose of obtaining insights and analysis to optimize Client’s websites and related campaigns. Except as expressly authorized herein, Client shall not to reproduce, duplicate, copy, sell, trade, resell, permit access, modify, create derivative works, or exploit for any commercial purposes, any portion of the Subscription Services, use of the Subscription Services, or access to the Subscription Services or computer code that powers the Subscription Services.
  2. Confidentiality
    1. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
    2. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
  3. Client will defend, indemnify and hold harmless Optimize5 and its affiliates and their officers, directors, employees, agents, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or resulting from: (a) Client’s gross negligence or willful misconduct; and (b) the breach of any of Client’s representations, warranties or obligations under this Agreement.
  4. Term, Termination and Survival
    1. Term. This Agreement shall commence as of the Effective Date and shall continue until the completion of the term set forth in the Subscription Schedule (the “Term”), unless sooner terminated pursuant to this Agreement.
    2. Termination for Breach. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
      1. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach.
      2. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within forty-five (45) days after filing.
  • Is dissolved or liquidated or takes any corporate action for such purpose.
  1. Termination for Non-Payment. Notwithstanding anything to the contrary, Optimize5 may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder: (a) and such failure continues for seven (7) days after Client’s receipt of written notice of nonpayment; or (b) more than two (2) times in any twelve (12) month period.
  2. Survival. The rights and obligations of the parties set forth in this Section, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
  1. Limitation of Liability
    1. IN NO EVENT SHALL OPTIMIZE5 BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING OUT OF NEGATIVE ONLINE REVIEWS OR ACTIONS TAKEN BY THIRD PARTIES NOT UNDER OPTIMIZE5’S CONTROL) REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT OPTIMIZE5 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. IN NO EVENT SHALL OPTIMIZE5’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO OPTIMIZE5 PURSUANT TO THE SUBSCRIPTION SCHEDULE OUT OF WHICH SUCH CLAIM ARISES.
  2. Entire Agreement. This Agreement, including and together with any related Subscription Schedule constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
  3. Notices. Notices shall be in writing. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.

Notices to Client:
To the client contact set forth on the applicable Subscription Schedule

Notices to Optimize5:
SV Consulting LLC
Attn: Scott Vancea
1326 San Carlos Road
Arcadia, CA 91006
scott@optimize5.com

  1. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  2. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by each Party.
  3. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  4. Assignment. Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Optimize5.
  5. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Notwithstanding the foregoing, if the Subscription Services provided to Client include posting to Client’s social media channels, Client authorizes Optimize5 to make posts on Client’s behalf.
  6. Choice of Law. This Agreement and all related documents are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
  7. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than a court of competent jurisdiction in Los Angeles County, California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in such court.
  8. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
  9. Force Majeure. Optimize5 shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Optimize5 including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of fifteen (15) days, Client shall be entitled to give notice in writing to Optimize5 to terminate this Agreement.