MojoMediaPros, Inc. (Mojo) will provide professional services ordered by our clients (Client) under the terms and conditions of this Professional Services Agreement (Agreement), the attached Proposal, and any relevant price list or work order. Any changes to the Agreement shall be documented and approved by Mojo and Client in writing and attached to the Agreement. Scheduled service dates will be agreed upon mutually, subject to availability of Mojo personnel.
Delivery and Acceptance
Upon completion and delivery of individual Project Deliverables, Client shall have three (3) business days to review the deliverable in order to determine whether it materially conforms to deliverable described in the attached Proposal. If the deliverable fails to materially conform to the proposed deliverable, Client shall notify Mojo and identify the specific nature of the deficiencies. Mojo shall use commercially reasonable efforts to make corrections accordingly. Upon the expiration of the said three (3) day period without written notice of deficiency from Client, or upon the earlier written notice of acceptance from Client, the deliverable shall be deemed to be accepted.
For any on-site services requested by Client, Client shall reimburse Mojo for actual, reasonable travel, lodging, and out-of-pocket expenses incurred. Travel expenses shall be in accordance with Mojo’s standard travel policy. Invoices shall reflect this policy. Mojo’s standard travel policy shall be disclosed to the client upon request.
Invoicing and Payment
Fees for services shall be payable when invoiced and shall be deemed overdue if they remain unpaid 10 days after the date of invoice. If Clients procedures require that an invoice be submitted against a purchase order before payment can be made, Client will be responsible for issuing such purchase order 10 days before the payment due date. Payments are due regardless of any third party action or responsibilities. Any payment not received by its due date will accrue interest at 1.5% per month.
For services contracted on Time and Materials basis, Mojo will notify the Client of any requirements for additional funding as soon as the need is recognized by Mojo. In the case of services contracted on a Fixed Fee basis, any request for additional funding, based on a change in scope, will be communicated to the Client as soon as the need is recognized by Mojo in accordance with the Changes in Scope provision, below.
Period of Performance
Period of performance shall be as defined in the attached Proposal statement of work.
Client assets, equipment, personnel, and stakeholders shall be available per the agreed upon schedule. Should the Client not be able to meet the agreed upon commitments the schedule and cost shall be adjusted accordingly.
Changes in Scope
Any changes in scope shall be mutually agreed upon Prior to commencement of the change. This includes the required changes in funding and schedule. Mojo will provide an estimate for the change in a timely manner and the Client shall approve or disapprove of this change in a timely manner.
The fees quoted do not include taxes. If Mojo is required to pay any federal, state, or local taxes based on the services provided under this Agreement, such taxes, except taxes based on Mojo’s income, shall be billed to and paid by the Client.
Rights to Developments
With the exception of all tools or work products brought into the engagement by Mojo, all deliverables under this Agreement shall be considered works-made-for-hire (Deliverables) and all ownership rights relating to the Deliverables shall vest in Client. Immediately upon the transfer of all of the rights of ownership of the Deliverables from Mojo to Client, Client shall, and does hereby, grant Mojo a perpetual, non-exclusive, royalty-free, transferable license to keep and use copies of the Deliverables, in any way Mojo may determine, including to develop, use, market, and license any software or data processing material created or used by Mojo in the course of its development of the Deliverables; provided however, nothing herein shall be construed to grant Mojo any right or license to use the confidential, proprietary information of Client.
Termination of Agreement
Either party can terminate this Agreement without cause upon thirty (15) days prior written notice to the other party. Either party can terminate this Agreement for cause if either party considers the other party is not performing its obligations according to this Agreement and provides written notice to the other party of such non-performance. The party receiving such written notice will have fifteen (15) days from the date of notice receipt to correct the situation. If this situation is not corrected, the Agreement can be terminated immediately upon written notice. The client is obligated and agrees to pay for services provided through the date of termination.
Mojo warrants that all associates sent to the Client facility will act in accordance with good business ethics and behaviors. Additionally, Mojo will ensure that all personnel assigned to the Client will be fully qualified to perform the task contracted for. If for any reason the Client feels that the Mojo representative is not technically qualified, Mojo will investigate the claim and provide substitute personnel to the Client at no additional cost. If the Client requests a Mojo representative be replaced for any reason other than job performance, a cost may be incurred. This cost will be mutually agreed to at the time.
Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results from causes outside the reasonable control of the party. Such causes shall include, without limitation, Acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, civil commotions, or the like. Notwithstanding the above, strikes and labor disputes shall not constitute an excusable delay for either party.
Non-Solicitation of Personnel
Client agrees not to solicit, offer or promise employment or employ any Mojo personnel during and for a period of one (1) year following termination of this Agreement for any reason unless written consent is received from Mojo. In the event an employee is solicited or hired in violation of this Agreement, Client shall promptly pay to Mojo 50% of the employee’s yearly compensation for expenses associated with replacing and training a new employee.
Limitation of Liability
In no event shall either party be liable for any indirect, incidental, special or consequential damages, including loss of profits, revenues, data, or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages. Mojo' liability for damages hereunder shall in no event exceed the amount of fees paid by Client under this Agreement for the relevant services.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (Confidential Information). Confidential Information shall be limited to the Programs and Developments which are created as part of this agreement, and all information clearly marked as confidential. The parties agree, both during the term of this Agreement and for a period of two years after termination, for any reason, of this Agreement and of all work orders hereunder, to hold each other's Confidential Information in strict confidence. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than the performance of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of the provisions of this Agreement.
If either party hereto brings any action to enforce such party's rights hereunder, the prevailing party in any such action shall be entitled to recover such party's reasonable attorneys’ fees and costs incurred in connection with such action.
Any controversy, dispute or claim between Client and Mojo, or MojoMediapros’ officers, agents or other employees, relating to this Agreement, shall be settled by binding arbitration, at the request of either party. The arbitrability of any controversy, dispute or claim under this provision shall be determined by application of the substantive provisions of the Federal Arbitration Act (9 U.S.C. sections 1 and 2) and by application of the procedural provisions of the Tennessee Uniform Arbitration Act. Arbitration shall be the exclusive method for resolving any dispute; provided, however, that either party may request provisional relief from a court of competent jurisdiction, as defined in TN Code § 29-5-301 (2015) and Client hereby waives any requirement that the Mojo post a bond or other security in connection therewith.
This Agreement shall be governed by the laws of the State of Tennessee and shall be deemed to be executed by the laws of the State of Tennessee. Any dispute arising out of or relating to this Agreement shall be determined by a federal or state court in the County, City, and State of Nashville, Tennessee, and in no other forum. The parties hereby submit to the jurisdiction of such courts.
If any provision of this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties' respective rights and obligations hereunder.
This Agreement constitutes the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the services and developments described herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. This Agreement may be executed in counterparts. Facsimile transmissions of the signature page shall be binding upon the parties.
- Last updated: 12/13/2016