MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT (the “Agreement”) is hereby executed as of the “Effective Date” (seen on invoice) by and among Up & To The Right, LLC, a Texas limited liability company, dba VirtualRealityRental.co (the “Company”), and the “Client”. Company and Client may be individually referred to as a “Party” and jointly as the “Parties.”
1. The Company provides pop-up virtual reality staffing services consisting of the transportation, set-up, management and take-down of virtual reality equipment at events (the “Equipment”).
2. The Client hosts events (the “Event(s)”) and desires to provide pop-up virtual reality services at its Events.
3. Client desires to enter into an agreement with Company, whereby Company shall provide the Equipment to Client on the terms and conditions set forth in this Agreement and any Statements of Work, schedules, exhibits or appendices hereto (collectively, the “Agreement”).
NOW THEREFORE, for and in consideration of the Services, the mutual promises and covenants contained herein, Company and Client hereby agree as follows:
1.01 Definitions. In this Agreement, unless the contrary intention appears, capitalized terms shall have the meaning set forth below:
“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party, where “control” is defined as the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
“Client Guest” or “Event Guest” means an individual in attendance at a Client Event either invited by the Client or invited by someone invited by the Client.
“Day” means a calendar day.
“Effective Date” is the date of commencement of this Agreement listed in the introductory paragraph.
“Equipment” means any virtual reality or virtual reality related equipment provided by Company at an Event, including but not limited to televisions, television cases, VR headset, VR headset accessories (cords, controllers, sensors, tripods, etc.), tripod case, divider curtain, divider curtain case, computers, computer cases, computer accessories (cords, mice, keyboards, etc.), 360 VR rig, Samsung gear VR headset, Samsung S7 phone, Samsung gear VR accessories (power adaptors, power cords, etc. ), and 360 VR case.
“Event” means any corporate gathering, concert, festival or other social gathering for which the Client has contracted for Company’s Service, including access to the Equipment.
“Event Property” means the physical location where an Event is taking place as well as the physical property located there. .
“Services” means those services (e.g., transporting, storing, delivering, setting up, maintaining, managing and removing Equipment) to be provided to Client by Company as specified in the applicable Statement of Work.
“Statement of Work” means an individual agreement between Company and Client for the provision of one or more specific Events at which Company shall provide Equipment and Services.
“VR” means virtual reality.
SCOPE OF SERVICES
2.01 Framework. This Agreement establishes a framework by which the Company shall provide Client with Services. The specific Services that the Company will provide to Client will be described in one or more mutually agreed upon Statements of Work signed by Company and Client. Each Statement of Work shall be treated as a separate agreement under the terms of this Agreement. Each Statement of Work shall include, to the extent applicable, the following items: (a) a description of the Services to be performed, including the Services to be provided, the time frame relatd to the Services, as well as any assumptions related to the Statement of Work, (b) pricing and payment terms regarding the Services and leased Equipment as set forth in Exhibit A, the Statement of Work, and (c) any other applicable terms and conditions specified in the Statement of Work. In the event of a conflict between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement control.
2.02 Scope. Client will engage the Company to render Client the below described Services in connection with transportation, storing, delivering, maintaining, managing and removing the Equipment at Events. The Company will have personnel present at each event to assist with setting up, operating, monitoring, and managing the Equipment.
(a) Power. Client shall provide the Company with the following level of power within a reasonable distance of Equipment: 110V, 10 amps, and one (1) 3 prong outlet.
(b) Access & Use. Client agrees that Company contractor or employee shall have continuous access and control over its Equipment located on Client’s Event Property at all times.
2.03 Amendment to Statement of Work. In the event that the Parties agree to amend, augment, reduce or otherwise modify any executed Statement of Work they may do so at any time before the date of full completion of the Services to be provided pursuant to the terms of that Statement of Work. A modification must be in writing and signed by the parties to be effective.
3.01 Payment. Client will pay Company in accordance with the payment details in the applicable Statement of Work. Company may adjust or modify rates at any time during the term of the Agreement, provided such modified rate is documented in the applicable Statement of Work before the commencement of the Services. Unless otherwise specified in the Statement of Work, upon execution of this Agreement Client shall remit via credit card a non-refundable payment in full.
3.02 Extra Service Hours. Unless otherwise stated in a Statement of Work, if Client uses the Equipment for a time period in excess of the time specified in any applicable Statement of Work, the default overage in rental time will billed to the Client at the rate of USD $400 per on-site attendant per rig. Payment for any overage is due within fourteen (14) days after the Completion of the Event.
3.03 Payment Default. If Client fails to pay Company any payment owed when due, Client shall be in default of this Agreement, and Company shall be entitled to the payment due plus a late charge equal to five percent (5%) of the outstanding invoice amount. Further, payments more than sixty (60) days past due shall accrue interest at a rate of six percent (6%) per annum, or the maximum rate allowed by law, whichever is lower. In the event that Client pays Company in the form of a check, and that check is denied by Company’s bank, Client, in addition to any relevant late fees described above, shall pay a $200.00 cash fee for any and all returned checks.
TERM AND TERMINATION
4.01 Term. This Agreement shall commence as of the Effective Date and shall conclude upon the completion of the work specified under the Statement of Work (“Expiration Date”), unless earlier terminated as specified herein, or extended by agreement between the Parties.
4.02 Termination of Agreement. Client reserves the right to terminate all or any part of an Agreement at any time by written notice to Company. In the event Client terminates an Agreement, then Client shall forfeit one-hundred percent (100%) of the agreed to price specified in the Statement of Work. Any Agreement shall terminate automatically, without notice, if Company becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors. Company reserves the right to terminate all or any part of this Agreement, if Client fails to make timely payments as described in Article III.
REPRESENTATIONS OF CLIENT
5.01 Representation and Warranties of Client. Client represents and warrants to the Company the following:
(a) Organization and Qualification. Client represents and warrants it is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Client has all requisite power and authority to carry on its business as currently conducted, other than such failures that would not reasonably be expected to have a material adverse effect on Client’s business, properties, or financial condition (a “Material Adverse Effect”).
(b) Non-Contravention. The execution and delivery by the Client of the Agreement and the performance and consummation of the transactions contemplated thereby do not and will not (i) violate the Client’s certificate of formation, or equivalent document, or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other person to accelerate (whether after the giving of notice or lapse of time or both), any material mortgage, indenture, agreement, instrument or contract to which the Client, or a principal or agent of Client, is a party or by which it is bound; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of the Client or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Client, its business or operations, or any of its assets or properties.
REPRESENTATIONS OF COMPANY
6.01 Representations and Warranties of the Company. The Company represents and warrants to Client the following:
(a) Organization and Qualification. The Company is a limited liability company duly organized, validly existing, and in good standing under the laws of the Texas. The Company has all requisite power and authority to carry on its business as currently conducted, other than such failures that would not reasonably be expected to have a material adverse effect on The Company’s business, properties, or financial condition (a “Material Adverse Effect”).
(b) Non-Contravention. The execution and delivery by the Company of the Agreement and the performance and consummation of the transactions contemplated thereby do not and will not (i) violate the Company’s certificate of formation or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any material mortgage, indenture, agreement, instrument or contract to which the Company is a party or by which it is bound; or (iii) result in the creation or imposition of any lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Client, its business or operations, or any of its assets or properties.
(c) Delivery and Retrieval of Equipment. The Company shall be exclusively responsible for the setup, management of, take down, and retrieval of the Equipment.
CONDITIONS APPLICABLE TO SERVICE
7.02 Damaged, Lost or Stolen Equipment. The Client understands and acknowledges that the Client is providing valuable Equipment at Events that could be damaged, lost or stolen. . As a result, Client agrees to pay for any costs associated with damaged, lost or stolen Equipment that occurs during an Event, including paying for the replacement of stolen or lost Equipment, .
7.04 Event Amenities. Client agrees to provide Company’s employee or contractor with food and beverage at the Event commensurate with the food and beverage provided to Event guests. Any further Event amenities required shall be listed in the relevant Statement of Work.
7.05 Preparation & Equipment Use. Client shall prepare Equipment for Event use. Company shall monitor the use of the Equipment during the Event. The Parties acknowledge and understand that operations during the Event may need to be interrupted for maintenance of the Equipment, or could result from a power outage or other failure outside of Company or Client’s control.
7.06 Insurance. Prior to the start of any Services under any applicable Statement of Work, Client shall provide Company with evidence of liability insurance coverage for the Event of at least $100,000, which shall provide insurance coverage for Company’s Equipment and Services under the Statement of Work. Client’s insurance policy shall contain a waiver of subrogation provision for the Company. In the event of any damaged, lost, or stolen, Equipment at an Event, Client shall either cover the cost of such damaged, lost or stolen Equipment directly through its Section 7.01 deposit, or make a claim on behalf of Company to its insurance coverage to pay for the cost of such damaged, lost or stolen Equipment.
LIMITATION OF LIABILITY & INDEMNIFICATION
8.01 Limitation of Liability. The Company and its affiliates’ cumulative liability to Client (or any other party whatsoever) for any loss or damages resulting from any claims, demands or actions arising out of or relating to the Services provided hereunder, including the use or the inability to use the Equipment, whether in contract, tort, (including negligence) or otherwise, shall not exceed the Payment made to the Company for such Services. The Company shall hold no responsibility for the consumption of alcoholic beverages or any activities that occur in or around the Equipment for the duration of their use at an Event as specified in any applicable Statement of Work. In no event shall the Company or its affiliates be liable for any indirect, incidental, consequential, special, punitive or exemplary damages or lost profits.
8.02 Client Indemnification of Company. Client agrees to indemnify and hold harmless Company and its respective directors, officers, agents and employees (each, a “Company Indemnified Person”) from and against any damages, and shall reimburse each Company Indemnified Person for all reasonable expenses (including reasonable attorney’s fees) as they are incurred in investigating, preparing or defending any claim, action, proceeding, or investigation, whether or not in connection with pending or threatened litigation and whether or not any Company Indemnified Person is a party (collectively, “Actions”), arising out of or in connection with the negligent acts or misconduct by Client in the performance of this Agreement. Despite the foregoing, Client shall not be responsible for any damages of any Company Indemnified Person that have resulted from the gross negligence or willful misconduct of such or any Company Indemnified Person in connection with any of the advice, actions, inactions, or Services referred to above.
9.01 Governing Law; Venue. This Agreement shall be governed in all respects by the laws of the State of Texas without regard to any provisions thereof relating to conflict of laws among different jurisdictions. Venue for any dispute between the parties will be in the state or federal courts of Travis County, Texas.
9.02 Successors and Assigns. Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors, and administrators of the Parties hereto. This Agreement shall not be construed or interpreted to confer any right or benefit on any individual, corporation, partnership, limited liability company, business trust, trust, association, or other organization, estate, government or governmental subdivision or agency, or other legal entity not a Party hereto, other than their respective successors, assigns, heirs, executors, and administrators.
9.03 Entire Agreement and Amendment. This Agreement and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement among the Parties with regard to the subjects hereof and thereof and supersede all prior agreements and understandings relating thereto. Neither this Agreement nor any term hereof may be amended, waived, discharged, or terminated other than by a written instrument signed by the Party against whom enforcement of any such amendment, waiver, discharge, or termination is sought.
9.04 Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile or portable document format (pdf)), each of which may be executed by one or more Parties, which shall be enforceable against the Parties actually executing such counterparts, and all of which together shall constitute one instrument.
9.05 Severability and Enforcement. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without such provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any Party or alters any material term of this Agreement. Any severed provision shall be amended as best as possible in order to effect the original intent of the Parties. The Parties hereto agree that irreparable damage for which money damages would not be an adequate remedy would occur in the event that any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that, in addition to any other remedies a Party may have at law or equity, the Parties shall be entitled to seek an injunction or injunctions to prevent such breach of this Agreement and to enforce specifically the terms hereof.
9.06 Notification. Notices must be in writing, and shall be considered to have been received when delivered by hand, received via electronic email, or five (5) days after sent using a delivery service similar to USPS Certified Mail to the addresses below:
If to Company:
1304 Briarcliff Blvd
Austin, TX 78723
With a copy to (which copy shall not constitute notice):
Vela Wood PC
600 Congress Ave, Suite 1400
Austin, TX 78701
9.07 Dispute Resolution. In the event of a dispute arising out of the interpretation or performance of this Agreement, the Parties agree to first submit such dispute to non-binding mediation with a mutually agreed upon mediator in a mutually agreeable location. If the parties cannot agree upon a location then the mediation shall take place Austin, Texas. If the Parties cannot agree upon a mediator, then each Party shall select a mediator and those mediators shall select a single mediator to handle the mediation.
IN WITNESS WHEREOF, this Agreement has been duly executed once the Client pays the invoice.