THIS MASTER SERVICES AGREEMENT (the “Agreement‟) is made as of the date provided (“Effective Date) on a signed Statement of Work ("SOW"), between (“Client”), as established on the signed SOW referencing this MSA and1406 Consulting, LLC, located at 6470 E Johns Crossing, Suite 160, Johns Creek, GA 30097 (“1406”).
WHEREAS, 1406 is a full-service marketing, advertising, and media agency with a focus on CRM software configuration, software integration, marketing automation, SEO/Search engine marketing, social marketing/selling, corporate marketing, eCommerce, experiential marketing, event marketing, graphic design, web development, video production, advertising, PR, consulting, advising, directing and managing business methods, strategies and systems for sales & marketing, promotion, and direct sales for companies and organizations.
WHEREAS, the Client wishes to obtain the services of 1406 for the purpose of software configuration, sales, marketing, and branding of its associated products and services. In consideration of the premises and mutual obligations contained herein, and intending to be legally bound, the parties hereto agree as follows:
(a) 1406 shall consult with and assist Client in the execution of its software configuration, branding,
sales, & marketing strategies for the purpose of successfully differentiating Client's products and
services. 1406 shall provide the services (“Services”) more particularly set forth within all signed SOWs.
(b) The foregoing services shall be performed in accordance with milestones established by Client, and
be consistent with, the documented discussions between Client and 1406, and shall be subject to such
performance measures for each stage of performance as the parties shall identify prior to
commencement of each stage of the Services provided. 1406 will perform the Services in accordance
with the procedures described as part of a designated Process (as that term is defined below), in a
timely and professional manner, consistent with industry standards, at a location, place and time that
1406 deems appropriate, and all in accordance with the Process, and this Agreement. The manner and
means that 1406 chooses to perform the Services are in 1406's sole discretion and control.
(c) If 1406 requires specific content, data, or other information from Client to complete a project with a
defined timeline, Client is expected to deliver the necessary collateral in a timely fashion upon initial
request. If Client is unable to provide all required collateral in a timely fashion, Client understands that
the project’s initial date of completion may be delayed.
(d) 1406, in consultation with Client, will determine the method, details, and means of performing the
work to be carried out for Client. In addition, Client shall be entitled to exercise a broad general power
of supervision and control over the results of work performed by 1406 to ensure satisfactory
performance. This power of supervision shall include the right to inspect, pause work, make suggestions
or recommendations as to the details of the work, and request modifications to the scope of the
Process. Modifications to the scope of the Process by Client resulting in additional services by 1406 shall
be compensated accordingly. Modifications to the scope of the Process by Client resulting in the extension of the duration of any
assignment will not limit 1406 to attain any bonus or additional fees associated with said assignment.
2. COMPENSATION AND PAYMENT TERMS.
(a) In consideration for 1406 rendering the Services, Client shall
i. Pay based on all signed SOWs in accordance with this agreement.
ii. Pay all deposits in advance and make all payments within 30 days of invoice date.
iii. Pay through check, automatic ACH, or automatic credit card transaction.
Note: Credit card and automatic ACH transactions may have a 1.5% convenience fee added.
(b) 1406 shall provide analytics and written documentation pertaining to project performance, reports
specific to the Services provided, itemizing in reasonable detail the dates on which services were
(c) Client shall also reimburse 1406 its reasonable out-of-pocket expenses in providing any and all
Services that require out-of-pocket expenses. All such expenses are subject to prior approval by Client.
Client will pay 1406 for the following expenses incurred during the performance of those Services.
• All travel expenses to and from all work sites and/or events;
• Meal expenses;
• Administrative expenses;
• Lodging Expenses if work demands overnight stays; and
• Miscellaneous travel-related expenses (parking and tolls).
(d) Where payment of any amount due is not made on due date, 1406, without prejudice to any other
right or remedy it may have, shall be entitled to charge interest on the outstanding amount at a rate of
1.5% per month, or the maximum allowed by state law, whichever is less. Such interest shall be
calculated from the due date for payment to the date of actual payment, both days inclusive,
compounded monthly in arrears and the Client agrees and undertakes to pay such interest, which it
hereby accepts as fair and reasonable, on demand; and suspend the provision of Services or such
portion thereof as 1406 in its sole discretion chooses until all payments in arrears have been paid in full.
(e) By the last business day of each payment period, 1406 shall submit for compensation due for the
particular payment period. Each invoice should include, at a minimum:
• invoice number;
• the payment period during which Services have rendered;
• description of the above;
• the agreed compensation rate;
• any authorized and approved expenses pursuant to Clause 2 (c);
• other disbursements pursuant to Clause 4.
3. MEDIA COMMISSION.
For all advertising space engaged by 1406 for Client, Services shall be eligible for advertising agency
commission of 20% on such advertising placement, unless otherwise stated in the applicable SOW.
4. OTHER DISBURSEMENTS.
All fees to be paid to publishers, radio and television stations and other media personnel engaged as
third parties or subcontractors by 1406, shall be treated as "other disbursements‟ and be included in
the invoices to Client. Such payment of "other disbursements‟ shall be made in accordance to the billing
terms of the respective third party or subcontractor engaged.
This Agreement shall be effective on the Effective Date and continue with full effect for a minimum of 12
months. After a 12th month time period has transpired this agreement shall automatically renew for an
additional 12 months unless terminated earlier according to any of the provisions in Clause 6.
(a) Cancellation. If a party violates its obligations under this Agreement or Appendix 1 & 2, the other
party may terminate the Agreement if the non-complying party fails to cure the noncompliance with
thirty (30) days from the date of a notice to cure any such noncompliance.
(b) Nonpayment. Notwithstanding Section 6(a), Client's failure to pay an invoice when due shall be a
sufficient cause for cancellation of this Agreement by 1406 as provided hereunder. If Client fails to pay
within ten (10) days of a notice by 1406, 1406 shall have the right to cancel the Agreement and any and
all Services being rendered as of the eleventh day after the date of the notice and receive full payment
for the entire term of the Agreement in Clause 5. In the event the account is placed for collection, Client
agrees to pay all expenses of collection to the extent permitted by law including, but not limited to,
attorney fees incurred by 1406.
(c) Refund. Upon termination or cancellation of this Agreement or SOW, 1406 shall be entitled to retain
all payments made to that point (including any non-refundable deposit) paid to 1406 under this
Agreement or such Process for the Services or in anticipation of the Services.
(d) Payment Obligation. Termination or cancellation of this Agreement shall not terminate or cancel any
payment obligation of Client under this Agreement for work that was performed.
7. OWNERSHIP; GRANT OF LICENSES.
(a) Except as otherwise provided herein, the parties agree that all finalized documents, designs, business
information, customer lists, documentation, processes, and other proprietary and/or tangible materials
authored or prepared by 1406 (and its employees, agents, consultants or subcontractors) for Client as
the deliverables are the sole and exclusive property of the Client.
(b) Client acknowledges that 1406 provides similar consulting services to other customers, and agrees,
subject to 1406's confidentiality obligations hereunder, that nothing in this Agreement shall be deemed
or construed to prevent 1406 from carrying on such business during the term of this Agreement. In
particular, Client agrees that as part of 1406's provision of the Services hereunder, 1406 may utilize
proprietary works of authorship that have not been created specifically for Client, including without
limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records
and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how,
techniques, knowledge or data, which have been originated, developed or purchased by 1406 or by
third parties under contract to 1406 (all of the foregoing, collectively, "1406's Information"), and 1406's
Information and 1406's administrative communications, records, files and working papers relating to the
Services are and shall remain the sole and exclusive property of 1406.
(c) Except as otherwise provided herein, upon payment in full of all fees and other amounts due under
this Agreement and provided that Client is not in material breach of this Agreement, 1406 grants to
Client a perpetual, worldwide, non-exclusive, non-transferable license to use deliverables of Services
solely for the purpose expressly set forth, and 1406's Information incorporated into the deliverables
solely in connection with Client's use of the deliverables. Except as otherwise provided herein, Client
shall not have the right to license, sublicense or otherwise transfer to others the right to use the
deliverables or 1406's Information without 1406's prior written consent.
(d) 1406 shall have the right to use Client's name and trademark in its advertising, Client lists, and
(e) Except as expressly authorized in this Agreement, Client may not rent, sell, lease, sublicense,
distribute, transfer, copy, reproduce, display, modify or time share the deliverables of the Services.
(f) 1406 reserves the right to provide products and services purchased under this agreement to any and
all business entities including those that might be within the same industry.
(g) If in the instance that 1406 and Client should terminate this agreement per Section 6 of this
agreement, then 1406 will support the transfer the Client's proprietary information to the Client in a
(a) The Client and 1406 may disclose confidential information one to the other to facilitate work under
this Agreement. Such information shall be so identified in writing at the time of its transmittal and shall
be safeguarded and not disclosed to third parties by the receiving party. Any information disclosed to
Receiving Party by Disclosing Party shall be marked "confidential," "proprietary" or with a similar legend.
For information, which is disclosed verbally, the Disclosing Party must notify the confidential nature of
the information at the time of disclosure or transmittal. Confidential information shall not include
(i) is already known to the party to which it is disclosed;
(ii) is or becomes part of the public domain without breach of this Agreement;
(iii) is obtained from third parties, which have no obligations to keep confidential to the parties
to this Agreement.
(b) Notwithstanding Section 8(a), any and all information relating to Client’s customers and prospective
customers which was obtained by Client shall be safeguarded and not disclosed to third parties.
(c) This clause shall survive any termination of this Agreement.
(d) Unless the Receiving Party has a license to use the Confidential Information, upon any termination of
this Agreement, or at any time upon Disclosing Party's request, Receiving Party shall promptly, at
Disclosing Party's option, either return or destroy all (or, if Disclosing Party so requests, any part) of the
Confidential Information previously disclosed, and all copies thereof, and Receiving Party shall certify in
writing as to its compliance with the foregoing. A party disclosing Confidential Information shall herein
be referred to as the "Disclosing Party," and a party receiving Confidential Information hereunder shall
herein be referred to as the "Receiving Party."
9. 1406’S WARRANTIES AND INDEMNIFICATIONS.
(a) 1406 represents and warrants to Client that:
(i) 1406 possesses full power and authority to enter into this Agreement and to carry out its
(ii) with respect to the Services which 1406 will deliver to Client in performance of this
Agreement,1406 warrants that it has the right to make and disclose thereof without
liability to any third party;
(iii) the Services shall not infringe upon or violate any right of privacy or publicity or any
patent, copyright, trademark, trade secret, or other proprietary right of any third party;
(iv) the performance of the terms of this Agreement and the performance of 1406's duties
hereunder will not breach any separate agreement by which 1406 is bound, or violate or
infringe any rights of any third party, and so long as this Agreement remains in effect, 1406
shall not commit any act or enter into any agreement or understanding with any third party
which is inconsistent or in conflict with this Agreement;
(v) there are no, and there will not be, any liens, claims or encumbrances against the Program
which would derogate from or be inconsistent with any of Client's proprietary rights with
(vi) 1406 represents and warrants that it is, and at all times during the term of this
Agreement will be the holder of all consents necessary for it to perform its obligations
(vii) there is presently no litigation or other claim, pending or threatening, nor a fact which may
be the basis of any claim against the Program, and 1406 has not taken any action or failed
to take any action which would interfere with the rights of Client under this Agreement.
(b) The representations, warranties and indemnification rights set forth in the Agreement shall survive
execution of this Agreement, the performance of the obligation of 1406 hereunder, and cancellation or
termination of this Agreement.
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE 9, 1406 EXPRESSLY DISCLAIMS, AND Client HEREBY
EXPRESSLY WAIVES ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT
AS EXPRESSLY SET FORTH IN THIS CLAUSE 9, ALL SERVICES AND DELIVERABLES ARE PROVIDED "AS IS."
10. LIMITATION OF LIABILITY.
CLIENT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL 1406 OR ANY OF 1406 OFFICERS,
DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CLIENT OR ANY
OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
OR LOSS OF GOODWILL IN ANY WAY, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO
THIS CONTRACT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE
PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES, INCLUDING THE FAILURE OF ESSENTIAL
PURPOSE, EVEN IF 1406 HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES
EACH PARTY AGREES THAT THE OTHER PARTY’S LIABILITY HEREUNDER FOR DAMAGES, REGARDLESS OF
THE FORM OF ACTION, WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID FOR SERVICES AND
DELIVERABLES UNDER THE APPENDIX A GIVING RISE TO THE DAMAGES. THE PARTIES AGREE THAT
AMOUNTS STATED HEREIN ARE FAIR UNDER THE CIRCUMSTANCES AND THAT THE PRICES REFLECT THIS
LIMITATION OF LIABILITY.
Each Party will defend, indemnify and hold the other party harmless from and against any and all
liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any
claim or action brought against the party for actual or alleged infringement of any patent issued as of
the Effective Date of this Agreement, copyright, trademark, service mark, trade secret or other property
right based upon the duplication, sale, license or use of the materials provided by that party. If 1406
becomes aware of such a claim it shall notify Client promptly of such claim; and give Client full and
complete authority, information and assistance to Client (at Client’s cost) in the defense or settlement of
such claim. Further, Client shall have sole control of the defense and of the negotiations for settlement,
if any, of such claim. Provided further that 1406, in relying on this indemnity, shall use its best efforts to
mitigate the quantum of any associated claim. Except as otherwise stipulated, in no event shall either
party be liable to the other party for consequential or special damages arising out of this Agreement or
the termination thereof.
12. INDEPENDENT CONTRACTOR.
Nothing herein shall be construed to create an employer-employee relationship between the Client and
1406. 1406 is an independent contractor and not an employee of the Client or any of its subsidiaries or
affiliates. The compensation shall be the sole consideration due 1406 for the Services rendered
hereunder. It is understood that the Client will not withhold any amounts for payment of taxes from the
compensation of 1406 hereunder. 1406 will not represent to be or hold herself out as an employee of
(a) No Exclusivity. Nothing in the Agreement shall be construed to prohibit either Party from dealing
with any other person, or other entity regarding the distribution, purchase or use of any product or
service or for any other business relationship or any other reason.
(b) No Assignment. This Agreement may not be assigned by the either Party without the prior written
consent of the other Party, which consent shall not be unreasonably withheld.
(c) Severability. If any provision of this Agreement shall be held invalid in a court of law, the remaining
provisions shall be construed as if the invalid provision were not included in this
(d) Waiver. No failure or delay on the part of Either Party in exercising any right, power or privilege
under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such
right, power or privilege or of any other right, power or privilege operate as a waiver of any subsequent
(e) Arbitration. Any controversy or claim arising out of or relating to this Agreement, or breach thereof,
shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration
Association in the State of Georgia, Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in
accordance with the Arbitration Rules of AMERICAN ARBITRATION ASSOCIATION and provided within
the State of Georgia, Fulton County. Each party shall have the right of discovery as set forth in the
Federal Rules of Civil Procedure. The Arbitration shall be administered by AMERICAN ARBITRATION
(f) Governing Law. This Agreement shall be construed according to and governed by the laws of the
State of Georgia without regard to the conflicts of laws or provisions thereof. All legal proceedings,
including the rendering of any award, shall take place in courts within Fulton County, which shall be the
exclusive forum for resolving any dispute, controversy or claim arising out of or related in any manner to
(g) Notices. Any notice required by this Agreement or given in connection with it, shall be in writing and
shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or
recognized overnight delivery services to the addresses provided at the end of the Agreement.
(h) Entire Agreement. This Agreement sets forth the entire agreement and terminates and supersedes
all prior understandings or agreements on the subject matter hereof. This Agreement may be modified
only by a further writing that is duly executed by both Parties.
(i) Survival. Clauses 7, 8, 9, 10 and 11 shall survive any termination of this Agreement.
Revised April 25, 2022