Master Services Agreement
This Master Services Agreement is effective as of the date of signature on your respective signed agreement and is between WhatArmy, Inc, a Massachusetts Corporation (“Agency”) and the Client (“Client”) as defined within the signature section of your respective signed agreement. Capitalized terms in this agreement that are not otherwise defined have the meanings given in Section 13. The parties agree as follows:
Statements of Work. Agency shall provide Client the services and Deliverables described in any document that references this agreement, details the fees for such work, and is signed by the parties (each an “SOW”). Upon signing, each SOW becomes part of this agreement. If an SOW conflicts with this agreement, the terms of the SOW control as to the work described in the SOW.
- Services; Fees; Billing Disputes. Client shall pay all invoiced fees and approved expenses as provided in the SOW. If Client disputes any amount invoiced, Client must give Agency written notice describing the dispute in reasonable detail within 5 days of Agency sending the invoice. Client may not dispute invoices after the 5 day dispute window closes. Services provided outside the scope of an SOW will be billed at the hourly rate indicated under the “Approved Additional Work” section of the SOW.
- Client Obligations. In addition to any assumptions or obligations in the SOW, Client shall (a) timely provide Client Materials necessary for Agency’s performance of its services; (b) ensure Client stakeholders are available and responsive over the course of the engagement and/or project; (c) ensure that all Client feedback and approvals are provided through a single point of contact; and (d) provide any access necessary for Agency to perform its services. (“Client Obligations”). If Client repeatedly or unreasonably fails to perform the Client Obligations, Agency may provide written notice specifying the failure and request that Client correct the failure. If Client does not correct the failure within five  days of its receipt of the notice, Agency may, by written notice to Client, stop work under the SOW and invoice for services provided through the date of work stoppage. To resume services, Agency may require an amendment to the SOW.
- Acceptance. (a) Client shall accept or reject each Deliverable in writing within five  days of receipt (the “Approval Period”). Deliverables may only be rejected for materially failing to conform to Specifications. Notice of rejection must be in writing and specify the reasons for rejection. If Client does not accept or reject a Deliverable within the Approval Period, it is deemed accepted. Upon receipt of a timely rejection notice, Agency will promptly correct any non-conformities at Agency’s expense.
- Termination of SOWs.
(a) Termination by Client. Client may terminate SOW on written notice to Agency (i) if Agency fails to cure a material breach of this agreement within fifteen  days of receiving written notice of the breach from Client; or (ii) for any other reason by paying all fees and approved expenses incurred prior to termination and the Early Termination Fee.
(b) Termination by Agency. Agency may terminate an SOW on written notice to Client if Client fails to cure a material breach of this agreement within fifteen  days of receiving written notice of the breach from Agency. Upon such termination, Client shall pay all and approved expenses incurred through the date of termination.(c) – Project Hold / Inactivity Fees. Agency may place an SOW on a Hold or Inactive list with written notice to a Client. If Client fails to respond within twenty  days to any or all communications, including, but not limited to Acceptance of a Deliverable, by the Agency to the Client the project can be considered on Hold or Inactive. In the event a project gets put on the Hold or Inactivity List the Client is subject to a resumption fee of $5,000 or 25% of the total amount of the SOW, whichever is greater. (d) – Projects on Hold Terminated By Agency. Agency may terminate a project with Client in the event that a project is on the Hold or Inactivity list for one hundred and eighty days (180) after Client’s receipt of notification that the project or SOW is on the Hold or Inactivity list from Agency. In the event the Agency terminates a project that is on the Hold or Inactivity list, Client shall pay all fees and approved expenses incurred prior to termination and the Early Termination Fee. Any and all prepayments will not be refunded.
- Confidential Information. Each party (the “Discloser”) may disclose Confidential Information to the other party (the “Recipient”) in connection with this agreement. The Recipient agrees to (a) maintain the Confidential Information in confidence; (b) protect the Confidential Information with a reasonable degree of care, including employing industry standard security procedures to prevent unauthorized disclosure of Confidential Information; (c) not use the Confidential Information except in the performance of its obligations under this agreement; and (d) disclose the Confidential Information only to those of its employees and agents who have a need to know the Confidential Information and who are bound by agreement or law to maintain the confidentiality of the information.
- Intellectual Property. Subject to Agency’s receipt of payment under the SOW, Agency assigns to Client all of Agency’s rights in the Deliverables (other than Agency Tools incorporated in the Deliverables). Agency shall provide Client with a copy of any licenses applicable to any Third-Party Materials included in the Deliverables (the “Third-Party Licenses”). Client shall comply with the terms of such licenses. Client grants Agency a license to use the Client Materials as contemplated by this agreement.
- Promotional Rights. Upon Client’s publication of any Deliverable, Agency may publicize depictions of the Deliverables, link to any online content containing the Deliverables, and describe its role in creating of the Deliverables. Agency may (i) publicize the fact that Client is Agency’s client; (ii) describe the nature of its work for the Client; and (iii) subject to any reasonable restrictions imposed by Client, utilize Client’s trade name(s) and trademark(s) in connection with its publicity.
(a) Mutual Warranties. Each party warrants that (i) it is authorized to enter into and perform this agreement; (ii) entering into and performing this agreement will not conflict with any other agreement to which the party is bound; and (iii) it will perform under this agreement in accordance with applicable law.
(b) Agency Warranties. Agency warrants that (i) it will perform its services in a professional manner and in accordance with industry standards; (ii) it will assign personnel who are reasonably experienced and qualified to perform its services; (iii) upon delivery and for a period of thirty  days thereafter, the Deliverables will materially conform to the Specifications; and (iv) to its knowledge, the Deliverables will not, if used by Client as contemplated by the SOW and in accordance with any Third-Party Licenses, infringe any third-party intellectual property rights.
(c) Client Warranties. Client warrants that, to its knowledge, the Client Materials will not, if used by Agency as contemplated by the SOW, infringe any third-party intellectual property rights.
(d) Disclaimer. Except as provided in this Section, each party’s performance under this agreement is provided “AS IS” and without other warranty, including without limitation any warranties arising from the course of performance, course of dealing, or usage of trade.
- Indemnity & Limit on Liability.
(a) Indemnity. Subject to Section 9(c), Agency shall indemnify and defend Client and its employees, officers, directors, shareholders, members, and managers (collectively, the “Indemnitees”) from any damages, expenses, fees, fines, penalties, expenses (including reasonable attorney’s fees) and costs incurred by the Indemnitees in connection with any third-party claim arising out of Agency’s breach of this agreement, negligence, or intentional wrongdoing (a “Claim”). As a condition to Agency’s indemnification obligation, the Indemnitees shall give Agency prompt written notice of any Claim or potential Claim. In any defense, (i) Agency has the sole right to defend and settle the Claim using counsel of its choosing; and (ii) the Indemnitees shall reasonably cooperate with Agency in the defense and settlement of the Claim.
(b) Exclusions. Agency is not liable under Section 9(a) to the extent that Claims result from: (i) the negligent or willful acts of an Indemnitee; (ii) Agency’s compliance with the instructions of Client; or (iii) a claim that a Deliverable is infringing where the alleged infringement is due to modifications made by (or on behalf of) Client.
(c) Limit on Liability. Each party’s maximum liability in any action relating to the subject of this agreement is limited to the total fees payable by Client pursuant to the SOW that is the subject of the dispute. This limitation does not apply to damages arising from a party’s gross negligence or intentional wrongdoing, the Conversion Fee, or to attorney’s fees and costs payable pursuant to Section 13. Neither party is liable for any claim for lost profits or similar damages, even if foreseeable and regardless of the form of action.
- Non-Solicitation. The parties shall not, while services are being performed by Agency and for one year after the last day on which services were provided, solicit, induce, or recruit, directly or indirectly, for itself or for any other party, the other party’s employees. The parties agree that damages resulting from a breach of this Section 11 would be difficult to quantify, but that a reasonable estimate of such damages is % of the total compensation paid to the subject employee in the twelve months preceding the breach (the “Conversion Fee”). As liquidated damages for breach of this provision, the breaching party shall pay the Conversion Fee to the other party.
- Governing Law; Jurisdiction; Venue. Massachusetts law governs this agreement, exclusive of its conflict of laws principles. The state and federal courts of Hampshire County, Massachusetts are the exclusive venue for resolving any disputes under this agreement. The parties consent to the personal jurisdiction of such courts, and waive defenses concerning venue and convenience of forum.
- Definitions. The following terms have the meanings given:
“Agency Tools” means Agency’s intellectual property (including its designs, methods, software, and trade secrets) that either preexist this agreement or are developed by Agency other than in providing services for Client under this agreement. Agency Tools includes any improvements that are not uniquely applicable to the Deliverables.
“Client Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, and other materials provided by or on behalf of Client to be used by Agency in connection with the preparation of or incorporated into the Deliverables.
“Confidential Information” means information that, either, is identified as confidential upon disclosure, or that the Recipient should understand to be confidential under the circumstances; provided, Confidential Information does not include information that: (i) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by the Recipient; (ii) at the time of disclosure is, or thereafter becomes, available to the Recipient on a non-confidential basis from a third-party source, provided, such third party is not and was not prohibited from disclosing such Confidential Information to the Recipient by any contractual obligation; (iii) was known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of the Discloser pursuant to this agreement; or (iv) was or is independently developed by the Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of the Discloser’s Confidential Information.
“Deliverables” means the final versions of the materials produced and delivered by Agency pursuant to this agreement. Deliverables may include Client Materials, Agency Tools, Third-Party Materials, and Work Product.
“Early Termination Fee” means an amount equal to % of the fees that would otherwise have been charged for the canceled portion of the project.
“Specifications” are functional or technical specifications for work described in an SOW or that have been otherwise agreed to in writing by Client and Agency.
“Third-Party Materials” means materials belonging to third parties that are incorporated into the Deliverables, including without limitation open source software, fonts, and stock images.
“Work Product” means the materials first created by Agency for Client in the course of performing the services pursuant to this agreement.
(a) Taxes. Agency shall pay all taxes on its income and employment taxes for its personnel. Client shall pay any sales, use and value added taxes.
(b) Insurance. While providing services, Agency shall maintain in effect policies of commercial general liability insurance with limits of at least $[1,000,000] per occurrence and professional liability (errors and omissions) insurance with limits of at least $[1,000,000] per occurrence. Upon written request, Agency will provide Client with proof of the insurance coverage required by this section.
(c) Relationship of the Parties. Agency is an independent contractor and not Client’s partner. The parties are not engaged in a joint venture. Agency’s employees are not to be considered Client’s employees for any purpose. Agency is solely responsible for the means and manner of performing the services.
(d) Attorney’s Fees. The prevailing party in any dispute regarding the subject of this agreement is entitled to recover its reasonable attorney’s fees, expert’s fees, and costs.
(e) This Agreement. This agreement (including all SOWs) is the entire agreement of the parties with respect to its subject. All prior and contemporaneous agreements are superseded. This agreement may only be amended by a writing signed by both parties. This Agreement may be signed in counterparts. Each counterpart constitutes an original and all together constitute a single agreement. If any term of this Agreement is determined to be unenforceable, the remainder of this Agreement will not be affected. This Agreement was negotiated by sophisticated parties and will not be construed in favor of or against either party.
Standard Service Agreement
- Business Hours: Our regular business hours are M – F, 9:00am – 5:00 pm EST. We are closed on weekends and most national holidays. Except for emergencies, or upon your request for off-hours work, all work is performed during our regular business hours, and our response times, including notifications to you under this agreement, are done during, and measured from, regular business hours.
- Service Requests: For each service request (other than Emergency or Off Hours Work when the Client cannot be contacted), the Client will receive a time estimate provided via email or SOW (Statement of Work). WhatArmy will not begin work until the Client approves the estimate / SOW via email or signature. Anything one hour or less is considered pre-approved and approval will not be requested. In any period with billable work a minimum of one (1) hour will be charged.
- Approved Additional Work: All work not covered under your Managed Service, Support Plan, or other recurring service will be referred to as “Approved Additional Work” or out of scope work as referenced in section two  of the Master Services Agreement.
(a) Approved Additional Work is provided on a first come first serve basis. Work will be scheduled upon approval, and completed in the order in which it was received. If you need to move up the queue Emergency rates will apply at the prevailing rate.
- Emergency / Off Hours Work: Emergency or Off Hours Work is Approved Additional Work which requires immediate attention. Emergency or Off Hours Work is defined as problems discovered with your website that critically impair the functionality and /or operation of your website. Emergency Work will be billed at the Emergency or Off Hours rate stated on your signed Agreement. All emergency or off-hours work will be billed in 1 hour increments. If WhatArmy discovers a need for Emergency or Off Hours Work, every effort will be made to contact you before performing the Emergency Work. However, if we cannot contact you within a reasonable time, you hereby authorize and allow us to perform up to 2 hours of Emergency Work at the prevailing rate. In the event of an emergency, the Client can request Emergency work, whether inside or outside of normal business hours, which will be billed at the prevailing rate.
(a) Work that is specifically requested by the Client to be performed outside of regular business hours will be billed at the Emergency or Off Hours rate stated on your signed Support Contract.
- Service Request Changes: If WhatArmy has already begun work on a service request (Approved Additional Work or Emergency / Off Hours Work), and the Client has Additional Work or changes, WhatArmy will create a new estimate or SOW for the Additional Work. The Client’s approval will be required via email or signature prior to work proceeding on the added or changed work. In the event you need to submit a change order all work performed to date will be billable to the Client under standard terms at the prevailing rate.
- Website Hosting: WhatArmy’s website hosting service is provided through WP Engine. WhatArmy will not be liable for any website or other service interruptions that are sourced from WP Engine, GoDaddy, or any sites that WhatArmy does not host. WhatArmy will only host a site with an agreement signed by both WhatArmy and the Client.
- Website Changes by Client: The Client should not make any changes to its website that impair the operation or functionality of its website without first notifying WhatArmy, as this may be interpreted as an attempt to hack or attack the website. In the event that the client makes changes without notifying WhatArmy, the client is liable for any and all costs associated with WhatArmy’s attempts to block the perceived hack or attack, including, but not limited to all work at the stated emergency rate.
- Search Engine: WhatArmy has no control over search engine ranking, and does not guarantee a presence of any developed or hosted website on any search engine. By paying WhatArmy, the client is not paying for any service that will improve search engine ranking. The Client can provide documentation from a 3rd Party Search Engine Optimization Firm, at that point WhatArmy can implement the recommendations of the 3rd Party Firm, but will not guarantee any outcomes as a result of the implementation of the recommendations of the 3rd Party Firm.
- Corrections: WhatArmy will correct technical issues related to code and functionality of electronic media components that result from WhatArmy oversight within 5 days of work completion, unless otherwise stated.
- Changes to Standard Service Agreement: We reserve the right to change our Standard Service Agreement for any reason at any time without notice.
Standard Support Agreement
- Support Plan Services: WhatArmy’s monitoring services are outlined in the Service Details portion of your contract. WhatArmy will, to the best of their ability, uphold these services. WhatArmy cannot be held liable for any errors or false readings that various tools may produce. WhatArmy will notify the Client of any breaches, downtime, or alerts that have been received, explored, analyzed and confirmed as legitimate, in a timely manner.
- Website Security: We employ overlapping measures to improve & maintain the security of your website. However, risks beyond our control will always exist. If your site is compromised, your Enterprise Plan will cover the first 2 hours of service to clean up the site. Our service team will provide an estimate for any remaining service required to restore the website. This does not apply to the WordPress Small Business Plan.
- Expirations: WhatArmy will monitor the expiration dates of domain and SSL certificates. WhatArmy is not liable in the event a domain or SSL certificate is not renewed and the website goes offline or the domain is lost.
- Support Plan Pricing: The price of the WordPress Support Plan, Managed Service, or any other recurring product, service or subscription is subject to change at any time or with any annual price increase solely at WhatArmy’s discretion.
- Blacklist Monitoring: WhatArmy monitors your website for major website/SEO known blacklists. WhatArmy service does not include blacklist email monitoring.
- Additional Sites: Additional sites – as defined as one (1) instance of a CMS – will be subject to subsequent review and will be priced at the current prevailing rate at the time the site is added. The contractual agreement is for the contracted primary website(s) only. Primary website(s) do(es) not include subdomains. Any subdomains that the Client wishes to be managed are considered add-on sites and will be priced at the current prevailing rate at the time the site is added. Any website to be managed must be written in the contract and charged for accordingly.
- Website Updates: Core, theme and/or plugin updates may include security updates to prevent a hack or attack on Client’s website. WhatArmy strongly encourages its Clients to install these updates as soon as possible. From time-to-time, a security update may be incompatible with another aspect of the Client’s website, resulting in an impairment in the operation or functionality of the website or some aspect. Should this happen, WhatArmy will notify the Client with an estimate/SOW of the cost to repair the website. If the Client elects to remove the update and/or not install it, WhatArmy will not be liable for a subsequent hack or attack on the Client’s website.
- Changes to Standard Support Agreement: We reserve the right to change our Standard Support Agreement for any reason at any time without notice.
Standard Billing Agreement
- Invoicing: The Client will be invoiced on the first [1st] and fifteenth [15th] of each month for work performed in the prior fifteen  day period.
- Autopay: The Client will be charged via credit card or ACH on or around five  business days after the invoice is sent by the Agency.
(a) As it pertains to any subscription service, Client will be automatically be charged one  time per month via credit card or ACH. The time frame is dependent upon date of signing up for service and subject to change at any time.
- Credit Card Charges: In the event Client uses a credit card to pay invoices, a 5% charge of the total invoice will be applied to any invoice over $2,000.
- Late Fee: WhatArmy will not assess any late fees on your account. However, in all cases, upon signing up with WhatArmy, the customer will be required to keep a credit card on file. If an invoice is not currently being disputed, by notifying WhatArmy in writing, and is outstanding for over 60 days WhatArmy will automatically charge that customer’s card for the outstanding balance.
- Refunds: WhatArmy may, on behalf and/or at the direction of the Client, purchase an item or items. Certain items cannot be returned; these items include, but are not limited to: stock photography, music, web hosting, domain names, statistical packages and software, etc. WhatArmy does not issue any refunds on monthly or annual Support Plans, Managed Services, any other recurring service plan, subscription, or retainer that may be offered, prorated or otherwise.
- Retainers: In the event retainer hours are purchased, they will expire within the month in which they’re purchased, unless otherwise stated.
- Renewals/Cancellation: Your Subscription Term (as outlined in your signed Service Contract) will automatically renew unless you email firstname.lastname@example.org notifying us that you don’t want to renew no more than 90 days, but at least 45 days, before the end of the Subscription Term. During the Initial Subscription Term and any renewal terms, you cannot cancel your WhatArmy Support Plan, Managed Service, or any other type of subscription (this includes commitments to purchase blocks of hours), even if your Billing Period is shorter than your Subscription Term. We do not provide refunds if you decide to stop using any of the WhatArmy Support Plans, Managed Services, or any other type of subscription, retainer, or service during your Subscription Term. In the event that you are hosted with us, at termination of contract you will incur standard, non-support charges for moving your site off of our hosting service.
- Changes to Standard Billing Agreement: We reserve the right to change our Standard Billing Agreement for any reason at any time without notice.