Standard Terms

Master Services Agreement

Last Updated: 5-October-2023

This Master Services Agreement is made between Hydro Studios, LLC, a Utah limited liability company (“Agency”), and Client.

All terms and conditions set forth in this Agreement apply to all Statements of Work (defined below) attached hereto from time to time and made pursuant to the Terms and Conditions. Each Statement of Work may contain additional terms and conditions that are specific to the services contemplated thereby. Collectively, the Terms and Conditions and any Statements of Work made hereunder, are all incorporated herein by reference, and are referred to throughout as the “Agreement.” This agreement is subject to change and update, as marked by the date above. The Parties hereby agree to all of the terms and conditions of this Agreement.

1. Services.
   1. Scope of Services. Agency and Client will develop and enter into one or more Statements of Work incorporating a description of the specific services requested by Client (“SOW”). Each SOW will set forth the project scope, schedule, various project activities and tasks to be performed by the Parties, deliverables, acceptance procedures and criteria and roles and responsibilities of the Parties. Each SOW shall specifically identify this Agreement and indicate that it is subject to the terms hereof. To the extent there are any conflicts or inconsistencies between this Agreement and any SOW, the provisions of this Agreement shall control. Agency will provide Client those services described as its obligation in each SOW. Each SOW shall be an Exhibit to this Agreement and shall be considered a valid addendum hereto.
   2. Change Order Procedure. Client may, upon notice to Agency, revise the Services or Deliverables in a manner which does not materially change the scope of the Services or Deliverables or may request in writing a material change in the scope of the Services or Deliverables or date of performance agreed to under any SOW. Within five (5) business days of receipt of such written request concerning a material change, Agency will submit a proposal, including time and costs, for such changes to the Client. If accepted in writing by the Client, Agency will revise the applicable SOW accordingly.
2. Payments.
   1. Project Fees and Reimbursable Items. Client shall pay to Agency the fees and other compensation set forth in each SOW. Agency will have no obligation to perform any Services when any amount required to be paid by Client remains due and unpaid beyond the date such amount is due. Any suspension of Services by Agency as a result of Client’s failure to make payment as required will extend the due dates of Agency Deliverables and other Services to the extent impacted by such suspension or delay.
   2. Invoices: Payments. Agency will invoice Client for the cost of its Services and other compensation upon execution of each SOW and by the payment schedule outlined in each SOW. In the event that Agency incurs necessary reimbursable expenses in the performance of the work specified by the SOW, these expenses will be billed to Client. Invoices are payable upon receipt and will be considered past due thirty (30) days after the date of the invoice. Client will pay interest at a rate of 1.5% per month on the amount on any invoice that is paid later than thirty (30) days after the date of the invoice.
3. Work Product and Client Intellectual Property. The term “Work Product” means any inventions, software, works of authorship, ideas, data or modifications and enhancements to software or documentation that are made, conceived, developed or reduced to practice, alone or jointly with others, by Agency for Client in the course of performing Services, whether or not any such items are eligible for patent, copyright, trade secret or other legal protection. Unless otherwise agreed in writing, all Work Product will be the sole and exclusive property of Client or its designee upon Client’s payment in full of amounts payable hereunder.
4. Confidential Information. The Term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party to the other in connection with the efforts contemplated hereunder. Agency and Client shall each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable case, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any SOW.
5. Indemnification. Agency and Client each agree to indemnify, defend and hold harmless the other, from and against any costs and damages awarded by a court pursuant to a final judgment as a result of any breach of a Party’s representations, warranties or agreements hereunder.
6. Limited Warranty. With respect to any Agency Deliverable or other Services, excluding any Client provided or Client directed third party materials, Agency warrants the following for a period of thirty (30) days following final acceptance by Client of the particular Agency Deliverable or the performance of such other Services:
   1. The applicable Services rendered hereunder will be performed by qualified personnel;
   2. The applicable Services performed will substantially conform to any applicable requirements set forth in the SOW;
   3. The applicable Agency Deliverable or Services will materially conform to the specifications, if any, and/or Acceptance Criteria, if any, for those specific corresponding Agency Deliverables or Services.
   4. The applicable Agency deliverable is not warranted to the following:
      1. To be error free
      2. To work with systems and software that is updated and out of the control of the Agency
7. Responsibility of Client. In the event that Client asserts any claim for warranty services hereunder and such claim relates to any matter that is determined not to be Agency’s responsibility hereunder (including any problem with Client’s computer hardware or the Software that was not caused by any Services performed by Agency), Client will be responsible to pay Agency for all evaluation, correction or other services performed by Agency relating to such claim on a time and materials basis.
8. Limitation of Liability.
   1. Exclusion of Damages. Except for a material breach of any warranty or representation, in no event shall either party be liable to the other party or any other person or entity for any special, exemplary, indirect, incidental, consequential or punitive damages of any kind or nature whatsoever (including, without limitation, lost revenues, profits, savings or business, other than amounts due and payable to either party or loss of records or data, whether in an action based on contract, warranty, strict liability, tort (including, without limitation, general negligence, but excluding gross negligence or willful misconduct) or otherwise, even if such party has been informed in advance of the possibility of such damages or such damages could have been reasonably foreseen by such party.
   2. Total Liability. In no event shall the liability of either party arising out of or in connection with the Agreement or the Services exceed, in the aggregate, the total fees paid by Client to Agency for the particular Services or Agency Deliverable with respect to which such liability related (or in the case of any liability not related to a particular portion of the Services, the total fees paid by Client to Agency under the applicable SOW), whether such liability is based on an action in contract, warranty, strict liability or tort (including, without limitation, general negligence, but excluding gross negligence or gross negligence or willful misconduct) or otherwise.
9. Independent Contractor. Agency shall be considered an independent contractor with respect to any and all work performed under this Agreement and any SOW, and all such work shall be considered a work-for-hire.
10. Term and Termination
    1. Term. The term of this Agreement will commence of the date first written above and, unless sooner terminated hereunder, will remain in effect until the completion of all Deliverables under any open SOW.
    2. Termination. Either Party may at any time and for any reason terminate this Agreement upon thirty (30) days written notice to the other Party. In the event Client terminates this Agreement, Agency shall, unless the notice directs otherwise, immediately discontinue the work in connection with the performance of this Agreement or any SOW. Client may retain all Agency Deliverables delivered to Client hereunder through the date of termination, whether in electronic or other form, provided that Agency has received payment for Services and Deliverables rendered through the date of termination. In the event Agency terminates this Agreement, Client shall be entitled to receive those Deliverables and Services for which it has paid through the date of termination.
11. Notices. Any notice required, permitted to be given, or otherwise given hereunder may be effectively given by personal delivery, registered mail certified return receipt requested, postage prepaid, or delivered by overnight delivery services, or by other electronic means so long as the recipient has acknowledged receipt (for purposes of this section an electronically generated receipt confirmation does NOT qualify as acknowledgement of receipt), address to the recipient as follows:
    • Client: On file or as specified in the Statement of Work.
    • Agency: Hydro Studios, LLC, P.O. Box 268, Newport, RI 02840
12. Successors and Assigns. The Parties agree that this Agreement shall be binding upon each of its successors and assigns and that this Agreement may not be assigned to any other third party, without the written consent of Client, which shall not be unreasonably withheld.
13. Enforceability. If the scope of any provision of this Agreement is too broad to permit enforcement to its full extent, then such provision shall be enforced to the maximum extent permitted by law, and the scope may be judicially modified to the extent necessary to conform to law.
14. Severability. Should any one or more of the provisions of this Agreement be determined to be illegal or unenforceable, all other provisions of this Agreement shall be given effect separately from the provision or provisions determined to be illegal or unenforceable and shall not be affected thereby.
15. Governing Law & Venue. This Agreement shall be governed by and construed in all respects in accordance with the law of the State of Utah. Venue for any dispute between the parties arising under this Agreement (including any dispute concerning its enforceability) shall lie in the state and federal courts of Salt Lake City, Utah.
16. Force Majeure. Neither Party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, fire, earthquakes, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.
17. Entire Agreement. This Agreement and any attached Exhibit shall constitute the entire Agreement between the Parties and supersede all prior representations, discussion and communications, whether oral or in writing, and no modification, revision, supplementation, abrogation, termination, extension, waiver or amendment to or of this Agreement may be made unless agreed to and executed by duly authorized representatives of the Parties, in writing.
18. Dispute Resolution. The Parties shall endeavor to resolve any differences of opinion which may arise between them with respect to the provisions of this Agreement be negotiation between themselves personally or with the assistance of their attorneys. All Parties hereby agree to make themselves available on short notice and to negotiate promptly and in good faith, any matter any Party may wish to negotiate. If there is no resolution then the Parties agree to participate in mediation conferences with a mutually agreed upon mediator. If there is no resolution, then the Parties agree to participate in binding arbitration under the rules of the American Arbitration Association, with a mutually agreed upon arbitrator.
19. Attorneys’ Fees. In the event of litigation or arbitration relating to the subject matter of this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement.
20. Authority. Each person signing warrants and represents that he or she has full authority to enter into this Agreement and that all representations and warranties in this Agreement are true and correct.