The Company, in rendering performance under this Agreement, shall be considered an independent contractor, and nothing included herein shall be considered 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 Client in any respect, any other provisions of this Agreement notwithstanding.
This Agreement is the entire understanding among the Parties regarding the subject matter, and it is superseding all negotiations, prior discussions, and prior agreements and understandings relating to this subject matter.
Any notice required to be given under this Agreement shall be in writing and delivered to the Company at 8310 South Valley Highway, Suite 300, Englewood, CO 80112, 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 at any time, but such change must be in writing and delivered in accordance with the provisions of this paragraph.
Theia's core hours of operation are Monday - Friday 08:00 - 17:00 Mountain Time (Denver), excluding every other Friday and Standard US Holidays, which are hereafter referred to as Core Hours. New requests or changes must be made before 16:00 Mountain Time Monday - Thursday and 12:00 Mountain Time on a working Friday, hereafter referred to as Core Operating Hours.
Theia Recognized Holidays are:
The Company agrees to provide the Client with the Services described in the Scope of Work, and all other Exhibits referenced in the SoW. A request for additional services verbally shall be documented in writing within five (5) business days of the request and before purchasing any third-party services. The written request shall supersede all verbal requests. Both Parties must agree to the requested additional services in writing before starting the work if the estimated cost of the services exceeds twenty percent (20%) of the agreed SoW or ongoing Agreement.
The Theia agrees to provide the Client the availability to utilize additional services on an as-needed basis to support the Client's HubSpot or other RevOps needs. These services will be billed out in accordance with Theia's Master Rate Schedule outlined in Exhibit D or SoW Rate Schedule outlined in Exhibit E. The SoW Rate Schedule, Exhibit E supersedes the Master Rate Schedule, Exhibit D.
A verbal request for additional services shall be documented in writing within five (5) business days of the request and before purchasing any third-party services. Both Parties must agree to the requested additional services in writing before starting the work if the estimated cost of the services exceeds two thousand dollars ($2,000.00). If the request is under two thousand dollars ($2,000.00), a written request from the Client or written confirmation of the scope from Theia shall be sufficient. The written request shall supersede all verbal requests, and any signed requests shall supersede any non-signed requests.
Theia and the Client may mutually agree for Theia to perform services outside of Theia's Core Hours, hereafter referred to as "Outside Core Hours". For Client requests made outside of Theia's Core Operating Hours and requested to be completed on the same day, the Client will be billed at the Outside Core Hours rate as set out below.
Any request for work to be done Outside Core Hours must be made by the Client in writing and approved by Theia one (1) business day in advance.
All services rendered Outside Core Hours will be charged at time and a half (One and a half (1.5) hours for every one (1) hour worked). This time multiplier is applicable to all services performed Outside Core Hours regardless of the nature of the work or the individual performing the work.
Theia and the Client may mutually agree for Theia to perform services on a Holiday Hours. Any requests for work to be done on Holiday Hours must be made by the Client in writing, and approved by Theia five (5) business days in advance.
All services rendered on a Recognized Holiday will be charged at double time, (Two (2) hours for every one (1) hour worked). This time multiplier is applicable to all services performed on Holiday Hours, regardless of the nature of the work or the individual performing the work.
All services rendered on a Recognized Holiday and outside Core Hours will be charged at triple time, (Three (3) hours for every one (1) hour worked). This time multiplier is applicable to all services performed during a Recognized Holiday Outside Core Hours, regardless of the nature of the work or the individual performing the work.
The Company is committed to providing exceptional Client service under this Agreement. Theia will respond to any Client inquiries, service requests, or issues related to the services provided under this Agreement within a maximum of three (3) business days in accordance with Theia's Core Hours.
Theia's response may include an acknowledgment of the receipt of the request, a status update, a request for additional information, or a resolution. In cases where a resolution cannot be provided within the initial response, Theia will provide an estimated timeline for resolution.
In rare cases where a response may take longer than three (3) business days due to unforeseen circumstances, Theia will inform the client about the delay and provide an updated expected response time.
The Client shall submit inquiries or requests via email to support@theiastrategies.com or via the support request form. Theia's commitment to a three (3) business days response time begins when the client's inquiry or request is received. Requests submitted any other way will not honor the three (3) business days response agreement. Requests or changes submitted within Core Operating Hours will be worked on the same day. Requests or changes submitted Outside Core Operating Hours will be worked on the following business day.
For any requests made Outside Core Hours or during Holiday Hours that are urgent and/or time-sensitive in nature, the level of urgency must be indicated in the request subject line or the selection field in the form. In the request body of the form, the Client must summarize the impact on the business. Any request flagged as Time Sensitive or Urgent will be resolved on a best-effort basis. By submitting the request, the Client agrees to be bound by the applicable billing rates for the time period the request is worked. The Client may impose a cap on the total spend when submitting the request but also acknowledges that the cap may prevent the problem from being resolved within their timeframe.
The Company is not responsible for third-party software errors, third-party system update issues, or third-party plugins that may become unusable, incompatible, result in data loss, system failure, or data corruption as a result of maintenance services performed by either the third-party software, the third-party plugin, platform host, or other systems in the data process flow.
The Company is not responsible for changes made to the Client’s system(s) by other parties, software, or systems.
The Company has no control over the policies of search engines, directories, email servers, email clients, web browsers, internet service providers, or software platforms with respect to the type of sites and/or content that they accept now or in the future. Client’s website(s), app(s), email(s), or other forms of electronic communication may be excluded from any search engines, directories, email servers, email clients, web browsers, internet service providers, or software platforms at any time at the sole discretion of the search engine, directory, email server, email client, web browser, internet service provider, or software platform.
The Company will provide all Services in a professional manner. For all systems the Company has to interface with, the Company will provide services on a best-effort basis; due to the complexity of software systems and the nature of the platforms, it may only sometimes be possible to provide the solution desired. The Company is unable to guarantee that desired solution is possible.
For all work performed under this Agreement, the Client shall pay the Company rates as stated. Client further agrees to pay the Company any and all fee(s) as invoiced by this Agreement. There shall be no refunds unless the Agreement is terminated by the Company as stated in Section 15, Termination for Cause, Duration of Agreement. The stated upfront fee(s) must be received before the start of any Services.
The Client further agrees that, in the event of any termination of this Agreement by the Client, no refunds shall be given under any circumstances whatsoever. The Client 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.
The Company shall bill the Client at the physical address or email address shown on the SoW on the first (1st) day of the month that the services were started for all work to be performed in that month's period. Payments shall be made to the Company at the address or payment mechanism specified on the invoice by the due date specified on the invoice.
For all services, Theia begins services once the first payment or a retainer has been paid/made.
For all consecutive invoicing, if payment is not received within seven (7) days of the due date, all services will be halted. Please be advised that the Company will charge two percent (2%) interest per month for overdue invoices after thirty (30) days. After sixty (60) days late, all subscription services will be canceled, and the Client will be responsible for paying any new activation or setup fees charged by the third-party service or rebuilding any lost information. Beyond ninety (90) days late, the account will be closed, and all outstanding charges will be sent to collections; all collection fees are the Client's responsibility.
The Company is hereby authorized to charge the Client's credit card account, bank account, or other payment mechanisms for any amounts owed from time to time by the Client to the Company. The Client has the option to set up recurring payments with the Company.
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 Client pays the Company’s invoices in a timely manner.
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 for support and maintenance of any work completed under this Agreement, but either Party may terminate the Agreement at any time, without cause, by delivering thirty (30) days notice to the other Party provided there are no active services.
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.
15.a.i. immediately if the Client fails to pay any fees hereunder;
15.a.ii. if the Client fails to cooperate with the Company or hinders the Company’s ability to perform the Requested Services hereunder;
15.a.iii. if the Company cannot provide the Services, due to the Company's fault, in which case all unearned fees will be refunded to the Client;
15.a.vi. Upon the expiration of the Agreement.
15.b.i. if the Company fails to cooperate with the Client or hinders the Client's ability to access or utilize the Requested Services hereunder;
5.b.ii. if the Client is unsatisfied with the Services, and sixty (60) days notice is given in writing, and the Company is unable to resolve the issues;
15.b.iii. Upon the expiration of the Agreement.
Theia reserves the right to make changes to this Master Service Agreement. When changes are made, Theia will notify all current Clients. Continuing to use Theia’s services after being notified of changes means you agree to the changes.
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 Client.
For the purposes of providing these services, Client agrees and represents:
18.a. To provide the Company with exclusive access, where applicable, to the Client's systems(s), third-party platforms, and other services required for performing the requested Services as possible.
18.b. The Client will not seek additional competing services that have been requested of the Company as outlined in the Agreement unless a prior written agreement has been made.
18.c. To properly convey to the Company the information that needs to be changed, added, or amended.
18.d. That Client's systems(s) have not been compromised, hacked, or otherwise defaced or infected prior to entering this Agreement.
The Company will perform all work in a professional manner and will make a reasonable effort to meet the Client'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 Client, provided the defects are a fault of the Company.
The Company does not warrant that the services will meet the Client’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 Client. 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.
19.a. the limited warranties set forth in this section are the sole and exclusive warranties provided by the Company, and
19.b. 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.
The Company requires employees and contractors to use Multi-factor Authentication on all systems, where possible, to protect the Company and the Client from a data breach. In the event that the Company learns of a data breach of login credentials, the platform being logged into, or the password storage system, the Company will promptly change its password to the affected systems and notify the Client of the breach.
The Company will utilize a backup system to attempt to maintain the integrity of the information stored within the Company's systems on behalf of the Client. However, incremental backups of data are performed every six (6) hours; the recovery of data is not guaranteed. The version of the information recovered from a backup may be different from the current version of the data. Any time the Company must spend to restore the data to its original state is the Client's responsibility.
Loss of the Client's data on the Company's systems due to the Company’s error will be restored to the original state at the cost of the Company. The Company will only recover data in the directly affected system and not any other systems in the process. The Company is not responsible for data recovery that is not caused exclusively by the Company, its employees, or contractors.
Loss of the Client's data on the Client's systems due to the Company's error will be restored to the original state at the cost of the Company, provided the Client is maintaining incremental backups of data performed at a minimum of every six (6) hours and the Company has been able to perform testing and validation in a Sandbox environment. The Company will only recover data in the directly affected system and not any other systems in the process. The Company is not responsible for data recovery that is not caused exclusively by the Company, its employees, or contractors.
The Company provides no warranty on the integrity or resiliency of backups performed by purchased third-party services.
It is the Client's responsibility to maintain adequate data backups of their information, data, files, and any other record requiring preservation or historical accuracy in the event of information corruption or data loss.
Title to Services provided by the Company and incorporated or intended to be incorporated into the Services shall be transferred to the Client immediately upon payment.
All rights, titles, and interests in each Party's products and services shall always remain the exclusive property of the respective Party. All intellectual property rights, including copyrights, patents, patent disclosures, 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 right 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.
24.a.i. The Company is responsible for checking for typing errors, misspellings, etc. at the Company’s cost.
24.a.ii. The Company will ensure the information is unique and free of copyright and trademark infringements.
24.a.iii. The Company will remedy errors at the Company’s cost.
24.a.iv. The Company will provide up to two (2) rounds of revisions for each piece created under the scope of the Agreement. The Client's feedback should be submitted in writing. Revisions must be within the original scope of the project as defined in the Agreement.
24.a.iv.1. The Client understands and agrees that each round of revisions may extend the original delivery deadline. The extension will be calculated based on the complexity of the requested changes and the current workload of the Company. The Client will be informed of the adjusted timeline after each round of revision requests.
24.a.iv.2. If more than two rounds of revisions are needed or if the revision requests are outside the original project scope, additional costs may apply. The Client will be informed of these costs in advance.
24.a.iv.3. If the Client requests additional revisions or changes that may significantly impact the agreed-upon delivery timeline, the Company reserves the right to adjust the project schedule accordingly.
24.b.i. The Company is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc. at the Company’s cost.
24.b.ii. The Company will make changes according to the Client's provided information. Any changes that are required will be at the Client's cost unless the errors were created by the Company.
24.b.iii. 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 Client 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.
The Client makes the following representations and warranties for the benefit of the Company:
The Client represents to the Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, other artwork, or material furnished to the Company are owned by the Client, or that the Client 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 Client.
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.
26.a. is or becomes generally known to the public by any means other than a breach of the obligations of the receiving Party;
26.b. was previously known to the receiving party or rightly received by the receiving Party from a third party;
26.c. is independently developed by the receiving Party; or
26.d. 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.
Theia Strategies retains the right to present any work developed under this Agreement in its portfolios and online properties (i.e., our website, LinkedIn, Facebook, Twitter, etc.) as well as third-party websites, design periodicals, awards, and other media or exhibits for recognition of creative excellence or professional advancement, and to be credited with authorship of the deliverables in connection with such uses. All client-identifying information will be anonymized at the request of the Client.
28.a.i. Employ any Company employee or contractor who provided any work under this Agreement or any SoW for the Client; or
28.a.ii. Solicit, induce, or influence either Party’s customers, clients, contractors or employees with the intention of enticing the other Party’s customers, clients, contractors or employees away from the Party with a prior established relationship to discontinue or reduce the scope of the employee's employment or the contractor's business relationship with the Company.
28.b.i. In the case of a Company employee, the Client will pay the Company an amount equal to the employee's then-current annual salary at the time of the employee's termination of employment with the Company (whether terminated by the employee or the Company); and
28.b.ii. In the case of a Company contractor, the Client will pay the Company an amount equal to the amount the contractor billed the Company in the twelve (12) month period immediately before the contractor discontinues or reduces the scope of the contractor's work for the Company.
In addition to any liquidated or other damages, violation of this section will be deemed a material breach of this Agreement and any existing SOW.
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.
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.
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.
The Company shall indemnify and hold harmless the Client 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 Client as a result of any claim, judgment, or adjudication against the Client related to or arising from:
32.a.i. 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 Client ("the Company Content"); or
32.a.ii. a claim that the Client's use of the Company Content infringes on the intellectual property rights of a third party. To qualify for such defense and payment, the Client must:
32.a.ii.1. give the Company prompt written notice of a claim; and
32.a.ii.2. allow the Company to control and fully cooperate with the Company in the defense and all related negotiations;
32.a.iii. 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;
32.a.iv. any unauthorized act or omission of the Company which may be determined to be binding upon the Client;
32.a.v. any claim against the Client by any third party alleging the Products or any Software infringes the rights of any such third party;
32.a.vi. 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 Client or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives.
The Client shall indemnify and hold harmless the Company and its subsidiaries, affiliates, officers, agents, co-branders or other partners, employees, and other 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:
32.b.i. 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 Client to the Company ("the Client Content"); or
32.b.ii. a claim that the Company’s use of the Client's Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, The Company must:
32.b.ii.1. give the Client prompt written notice of a claim; and
32.b.ii.2. allow the Client to control and fully cooperate with the Client in the defense and all related negotiations
32.b.iii. any act or omission of the Client, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occur in connection with this Agreement;
32.b.iv. Any unauthorized act or omission of the Client which may be determined to be binding upon the Company.
32.b.v. The breach by the Client or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives of any part of this Agreement.
32.b.vi. Any claim against the Company by any third party alleging the Products or any Software infringes the rights of any such third party.
32.b.vii. The negligence, recklessness or willful misconduct of the Client 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 Client agrees that the Client 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 Client’s exercise of Internet electronic commerce.
In no event shall the Company be liable to the Client 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 a 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.
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.
Client 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.
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.
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.
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 Client 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 Client to ensure compliance with this Agreement. The Client shall pay all costs of the audit. If an audit is requested within two (2) years, the Company shall maintain the records for as long as reasonably required to complete the audit. The Client is not entitled to review the Company’s 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. The Client is not not entitled to review any documents or information pertaining to any other Client of the Company.
The Client and the Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through mediation. 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.
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.
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado and the United States.
