Master Services Agreement

Great Things Start Here

Last Updated: July 18, 2022

1. Definitions

"Agreement" means this Master Services Agreement and all materials referred or linked to in here.
"Company", "We", "Us", "Our", "Theia" means Theia Marketing
“Clients” means the entity or individual that has or is seeking services from the Customer.
“Customer”, “You” means the Party, other than Theia Marketing, entering into this Agreement and purchasing products provided by Theia Marketing.
“Effective Date” means the date this Agreement is enforceable and active.
"Parties" means the Partner and the Company collectively.
"Party" means the Partner and the Company individually.
"Products" means any goods or services provided by Theia Marketing to the Customer.

2. Relationship of Parties

The Company, in rendering performance under this Agreement, shall be deemed an independent contractor, and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. By entering this Agreement, neither Party agrees to perform or undertake any obligation of the other Party, whether by regulation or contract. In no way is the Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding

This Agreement constitutes the entire understanding among the Parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and prior agreements and understandings relating to such subject matter.

3. Contact Information

Any notice required to be given under this Agreement shall be in writing and delivered to the Party at PO Box 2130, Elizabeth, CO 80107, either personally or by Federal Express, UPS, or other courier services with proof of delivery provided. Attempted delivery, which is refused shall be a valid notice under this Agreement. Either Party may change its address by at any time, but such change must be in writing and delivered in accordance with the provisions of this paragraph.

4. Marketing Services

The Company agrees to provide the Customer with the Marketing Services described in Exhibit A, Scope of Work, if procided. A request for additional services verbally shall be documented in writing within five (5) days of the request and before the purchase of any third-party services. The written request shall supersede all verbal requests. Both Parties must agree to the requested additional services in writing before commencing the work.

5. Ad hoc Services and Standard Rates

The Company agrees to provide the Customer the availability to utilize additional services on an as-needed basis for marketing or additional content development.

6. Exclusions

The Company is not responsible for third-party plugins that may become unusable or incompatible as a result of maintenance services performed by either the third-party plugin or website host.

The Company is not responsible for changes made to the Customer’s website(s) or any other systems by other parties.

The Company has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer’s web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.

7. Terms of Payment

For all work performed hereunder, the Customer shall pay the Company rates as agreed per the Master Rate Schedule outlined in Exhibit B, if included. Customer agrees to pay the Company any and all fee(s) as billed by this Agreement. There shall be no refunds. The stated upfront fee(s) must be received before the start of any Services.

The Customer further agrees that, in the event of any termination of this Agreement by the Customer, no refunds shall be given under any circumstances whatsoever. The Customer further agrees to pay upon cancellation the amount of any cancellation fee(s) or other amounts due to the Company as provided in the Agreement.

8. Time of Payment

The Company shall bill the Customer at the address shown above on the same day of the month that the services were started for all work to be performed in the month period. Payments shall be made to the Company at the address specified on the invoice within thirty (30) days of the invoice date. If payment is not received within the thirty (30) days, please be advised that we will charge 2% interest per month on late invoices. After sixty (60) days late all, subscription services will be canceled, and the Customer will be responsible for paying any new activation or setup fees charged by the third-party service. Beyond ninety (90) days late, the account will be closed, and all outstanding charges sent to collections, all collection fees are the responsibility of the Customer.

9. Payment Authorization

The Company is hereby authorized to charge the Customer’s credit card account or other payment mechanisms for any amounts owed from time to time by the Customer to the Company. The Customer has the option to set up reoccurring payments with the Company.

10. Payment of Claims

The Company shall promptly pay all bills and other indebtedness for third-party services provided or arising from this Agreement. The Company shall maintain detailed books and records relating thereto. Provided the Customer pays the Company’s invoices in a timely manner.

11. Duration of Agreement

This Agreement shall be effective for one (1) year after the Effective Date. After the one-year period, the Agreement shall continue in full force and effect, but either Party may terminate the Agreement at any time, without cause, by delivering thirty (30) days notice to the other Party.

This Agreement may be terminated by either Party upon written notice to the other if the other Party breaches any material obligation provided hereunder, and the breaching Party fails to cure such breach within thirty (30) days of receipt of the notice.

This Agreement may be terminated by the Company:

immediately if the Customer fails to pay any fees hereunder;
if the Customer fails to cooperate with the Company or hinders the Company’s ability to perform the Requested Services hereunder;
if the Company cannot provide the Services, due to the Companies fault, in which case all unearned fees will be refunded to the Customer;
Upon the expiration of the Agreement.

The Agreement may be terminated by the Customer at any time without penalty:

if the Company fails to cooperate with the Customer or hinders the Customer’s ability to access or utilize the Requested Services hereunder;
if the Customer is unsatisfied with the Services, and sixty (60) days notice is given in writing, and the Company is unable to resolve the issues;
Upon the expiration of the Agreement.

The Agreement may not be terminated within four (4) months of the Effective Date by the Customer. The Agreement may be terminated by the Customer at any time after the four (4) months from the Effective Date with a penalty fee of 125% of the monthly reoccurring charges.

12. Customer Responsibilities

For the purposes of providing these services, Customer agrees and represents:

To provide the Company with exclusive access, where applicable, to the Customers website(s), third-party platforms, and other services required for performing the requested Services.
The Customer will not seek additional competing services that have been requested of the Company as outlined in Exhibit A, Scope of Work, unless a prior written agreement has been made.
To properly convey to the Company the information that needs to be changed, added, or amended.
That Customer’s website(s) has not been compromised, hacked, or otherwise defaced or infected prior to entering this Agreement.

13. Standard of Performance

The Company will perform all work in a professional manner and will make a reasonable effort to meet the Customer’s needs. Any and all defects found in Services provided by the Company within thirty (30) days of completion will be remedied at no cost to the Customer, provided the defects are a fault of the Company.

The Company does not warrant that the services will meet the Customer’s expectations or requirements unless outlined in writing and clearly stated. The Company makes no warranty as to the success of the Services provided to the Customer. Except as otherwise specified in this Agreement, The Company provides its services “as is” and without warranty of any kind.

The Company makes no warranty of any kind, whether express or implied, with regard to any third-party products, third-party content, or any software, equipment, or hardware obtained from third-parties.

The Parties agree that:

the limited warranties set forth in this section are the sole and exclusive warranties provided by each Party, and
each Party disclaims all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose, relating to this Agreement, performance or inability to perform under this Agreement, the content, and each Party’s computing and distribution system.

14. Material Resilience

The Company will utilize a backup system to attempt to maintain the integrity of the information stored on behalf of the Customer. However, incremental backups of data are performed; the recovery of data is not guaranteed. The version of the information recovered from a backup may not be the current version of the data. Any time the Company must spend to restore the data to its original state is the responsibility of the Customer.

Loss of the Customers data due to the Company’s error will be restored to the original state at the cost of the Company.

The Company provides no warranty the integrity or resiliency of backups performed by purchased third-party services.

15. Title to the Work and Materials

Title to Services provided by the Company and incorporated or intended to be incorporated into the Services shall be transferred to the Customer immediately upon payment.

16. Intellectual Property

All rights, title, and interest in each Party's products and services shall at all times remain the exclusive property of the respective party. 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 each party's offerings shall remain the exclusive property of the respective party. No title to any such offerings shall be transferred under this Agreement by a party to the other party. Neither party shall remove or alter the copyright, trademark, and proprietary rights notices of the other party, and each shall prohibit any such removal or alteration by its officers, agents, employees, and contractors from any materials of the other.

17. Content Marketing

For Company developed content, the Company:

is responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc. at the Company’s cost.
will ensure that the information is unique and free of copyright and trademark infringements.
will remedy errors at the Company’s cost.

For Customer provided content the Company:

is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc. at the Company’s Cost.
will make changes according to the Customer’s provided information. Any changes that are required will be at the Customer’s cost unless the errors were created by the Company.
will not ensure that the information is unique and free of copyright and trademark infringements. The Company will check for issues and provide the Customer with notice if a possible infringement is identified; however, the Company makes no warranty to the completeness of this check and does not guarantee its accuracy.

18. Copyrights and Trademarks

The Customer makes the following representations and warranties for the benefit of the Company:

The Customer represents to the Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Company are owned by the Customer, or that the Customer has permission from the rightful owner to use each of these elements, or these elements are free of restriction for use and will hold harmless, protect, and defend the Company and its subcontractors from any claim or suit arising from the use of such elements furnished by the Customer.

19. Confidentiality

The Parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information.

Proprietary or Confidential Information shall not include any information which:

is or becomes generally known to the public by any means other than a breach of the obligations of the receiving Party;
was previously known to the receiving party or rightly received by the receiving Party from a third-party;
is independently developed by the receiving Party; or
is subject to disclosure under a court order or another lawful process.

The Parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third-party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each Party’s proprietary or confidential information shall remain the sole and exclusive property of that Party. The Parties agree that in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-disclosing Party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the Parties acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the termination date of service.

20. Non-Solicitation

During the term of this Agreement and for ninety (90) days after the termination of this Agreement, the Parties agree not to intentionally or directly solicit either Party’s customers, clients, or employees with the intention of enticing the other Party’s customers, clients, or employees away from the Party with a prior established relationship. Any violation of this paragraph may be enforced both equitably and at law.

21. Information Sharing

The Parties agree that each Party’s Proprietary or Confidential Information or Personal Identifying Information may be disclosed to its employees, agents, consultants, and/or contractors, on a need-to-know basis; provided the employee, agent, consultant, and/or contractor shall also be subject to the terms and conditions of this Agreement.

22. Destruction of Information

The Parties agree to destroy all Proprietary or Confidential Information or Personal Identifying Information of the requesting Party, providing the request is submitted by an authorized representative in writing, which includes all copies, backups, and any other form of the information, except for any information required to be kept for legal purposes. Information kept for legal purposes will be stored in an encrypted location accessible only by individuals requiring access to the information.

23. Due Process

In the event either Party’s information is sought through a subpoena or other court process, the recipient shall inform the other Party of the request in a timely manner to permit the Party owning the Proprietary or Confidential Information or Personal Identifying Information to object and, if necessary, seek court intervention to prevent disclosure.

24. Indemnities

The Company shall indemnify and hold harmless the Customer and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees from any and all claims, damages, liabilities, costs, and expenses, including, but not limited to, reasonable attorneys’ fees and all related costs and expenses, incurred by the Customer as a result of any claim, judgment, or adjudication against the Customer related to or arising from:

any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material, whether written, graphic, sound, or otherwise, provided by the Company to the Customer (“the Company Content”); or
a claim that the Customer’s use of the Company Content infringes on the intellectual property rights of a third party. To qualify for such defense and payment, the Customer must:
1. give the Company prompt written notice of a claim; and
2. allow the Company to control, and fully cooperate with The Company in the defense and all related negotiations;
any act or omission of the Company, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occur in connection with this Agreement;
any unauthorized act or omission of the Company which may be determined to be binding upon the Customer;
any claim against the Customer by any third-party alleging the Products or any Software infringes the rights of any such third-party;
The negligence, recklessness or willful misconduct of the Company or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives; provided, however, that the foregoing indemnification will not apply to any loss, liability, damage, action, cause of action, cost or expense resulting solely from the negligence, recklessness or willful misconduct of the Customer or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives.

The Customer shall indemnify and hold harmless the Company and its subsidiaries, affiliates, officers, agents, co-branders or other partners, employees, and Client(s) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by the Company as a result of any claim, judgment, or adjudication against the Company related to or arising from:

any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material, whether written, graphic, sound, or otherwise, provided by the Customer to the Company (“the Customer Content”); or
a claim that the Company’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, The Company must:
1. give the Customer prompt written notice of a claim; and
2. allow the Customer to control, and fully cooperate with the Customer in, the defense and all related negotiations;
any act or omission of the Customer, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occur in connection with this Agreement;
Any unauthorized act or omission of the Customer which may be determined to be binding upon the Company.
The breach by the Customer or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives of any part of this Agreement.
Any claim against the Company by any third-party alleging the Products or any Software infringes the rights of any such third-party.
The negligence, recklessness or willful misconduct of the Customer or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives; provided, however, that the foregoing indemnification will not apply to any loss, liability, damage, action, cause of action, cost or expense resulting solely from the negligence, recklessness or willful misconduct of the Company or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives.

From time to time, governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Customer agrees that the Customer is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Customer’s exercise of Internet electronic commerce.

25. Limited Liability

In no event shall the Company be liable to the Customer for any indirect, special, exemplary or consequential damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this Agreement, loss of data, or any performance under this Agreement.

26. Force Majeure

Neither Party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

27. Assignability

Customer may not assign this Agreement or the rights and obligations hereunder to any third‑party without the prior express written approval of the Company. The Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.

28. Agreement Binding on Successors

The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors, and assigns.

29. Alterations

No changes or alterations shall be made to the Services unless they are in writing and signed by properly authorized representatives of both the Company and the Customer.

30. Waiver

No benefit or right accruing to either Party under this Agreement shall be waived unless the waiver is in writing and signed by both Parties to this Agreement. The failure of either Party to exercise any of its rights under this Agreement shall in no way constitute a waiver of those rights, nor shall such failure excuse the other Party from any of its obligations under this Agreement.

31. Audit

The Company shall maintain a true and correct set of records pertaining to the Services performed or third-party services provided hereunder and all transactions related thereto. The Company agrees to retain all such records for a period of not less than two (2) years from the completion of the Services or third-party services provided. Any representative of the Customer may request to audit at any time within the two (2) years any and all records pertaining to the Services performed or third-party services provided for the Customer to ensure compliance with this Agreement. The Customer shall pay all costs of the audit. If an audit is requested within the two (2) years, the Company shall maintain the records for as long as reasonably required to complete the audit. The Customer is not entitled to review the Companies cost structures, calculations for employees pay, prices charged, or amounts paid to its vendors, profit margins, trade or professional information, drawings, designs, any documents subject to attorney-client or similar privilege, or any other confidential or proprietary information.

32. Disputes

The Customer and the Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the Parties fail to resolve any such disagreement within thirty (30) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either Party to arbitration in Douglas County, Colorado and in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

33. Severability

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

34. Titles and Headings

Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.

35. Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of Colorado.

36. Read and Understood

Each Party acknowledges that it has read and understood this Agreement and agrees to be bound by its terms and conditions.