This Master Services Agreement (the “MSA”) will be deemed incorporated into any agreement for services performed by 333 Consulting, LLC. (“Contractor” or “we” or “us”) on behalf of its clients and customers (each a “Client”). Client and Contractor are each sometimes referred herein to as a “Party” and collectively as the “Parties.”
Client wishes to hire Contractor to help secure Client with a TED® or TEDx® speaking engagement, and to perform certain other related services, and Contractor is willing to perform such services, according to the following terms and conditions.
In consideration of the mutual promises contained in the Parties’ agreement and this MSA, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
As used in this MSA, the following terms have the meanings indicated below:
1.1. “Deliverable(s)” means the work output and results that we are retained to deliver, develop, and/or provide as described and identified in a Statement of Work.
1.2. “Services” means, collectively, any consulting or other services that we, or our authorized subcontractors and/or employees, may perform for you under a Statement of Work.
1.3. “Statement of Work” or “SOW” means any written agreement for Services which references this MSA, and which is (1) signed by both Parties; or (2) provided by either Party and accepted by the other Party with no modifications to its terms. Each SOW must include, at a minimum, a description of the Services and the Deliverables to be provided by us, and start and delivery dates for such Deliverables, and any other items as the Parties may agree.
1.8. “Term” means the period of time starting from the Effective Date for any SOW until we provide all Deliverables, or this MSA or SOW is terminated under Section 9.
2.1. Services. Our Services assist Clients to apply for and secure a TED® and/or TEDx® speaking engagement. We assist and coordinate with you, as the client, in applying for and preparing for a successful engagement.
By signing any SOW, you acknowledge and agree that we are your independent contractor, and that we are not the provider of any services offered by TED Conferences LLC, its affiliates or related entities (collectively, “TED”), or those actually provided in connection with a TED® or TEDx® speaking engagement.
We are not owned, affiliated with, or under the common control with TED, and we are not responsible for the services provided by TED, or for their results, including any injury or loss you may experience as a result.
Subject to the terms of the “Disclaimer of Warranties” and “Limited Liability” sections below, Contractor does not guarantee or warranty that any Services will be performed exactly as you expect, or that your use of Services will be fit for any intended purpose or negligence-free. To the fullest extent of applicable law, Contractor will have no liability to you for the results of any TED services, including but not limited to, personal or professional injury or loss.
TED speaking engagements are subject to TED’s respective terms and conditions of services, and it is Client’s responsibility to make sure Client understands and agrees to them before accepting their services, or the Services we provide.
2.2. Statements of Work. When required under applicable circumstances, we will only undertake to perform Services under a written Statement of Work which is signed and accepted by both Parties. Unless otherwise stated in a SOW, (a) each SOW will be independent from, and have no impact upon, any other SOW; and (b) in the event of any conflict or inconsistency between a Statement of Work signed by both Parties and this MSA, the provisions of the Statement of Work will control, but only to the extent of the conflict in terms.
2.3. Standards. Contractor will provide Services to the Client in accordance with professional and ethical standards of practice in the industry and according to all applicable law. Contractor will diligently devote the time, skill and efforts necessary to provide the Services and Deliverables to the Client’s satisfaction on a timely basis.
3. COMPENSATION FOR SERVICES.
3.1. Fees. Client will pay Contractor fees according to Contractor’s then current rates, or as set forth in a Statement(s) of Work, as Contractor’s entire compensation for all time, effort and work necessary to provide the Services and Deliverables to the Client hereunder.
3.2. Expenses. Client agrees to reimburse Contractor for all actual, reasonable, and documented expenses that are authorized in writing. Contractor will keep written records or accounts of expenses that are submitted for reimbursement including, but not limited to, the date incurred and specific Services to which they pertain. Contractor will submit such records and accounts to Client as part of its invoices for Services to which the expenses relate.
3.3. Timing of Invoices & Payment. If payment for Services is not due from Client “up-front”, or before Services begin, Contractor will submit invoices to the Client on a monthly basis, or else according to any schedule set forth in a SOW. Client agrees to pay Contractor’s invoices within thirty (30) days after receipt of an undisputed invoice. Contractor reserves the right to suspend performance of Services, with no liability to Client therefor, if Client is in material, undisputed breach of any payment obligation.
3.4. Refunds. Following execution of any SOW or Client’s acceptance of any Services, NO REFUNDS OF ANY FEES WILL BE GIVEN TO CLIENT.
4. INDEPENDENT CONTRACTOR RELATIONSHIP.
4.1. Non-Exclusive Relationship. This MSA provides for a non-exclusive, independent business arrangement between the Parties. Client is not obligated to request any minimum amount or type of Services, and may use the services of other contractors for the same purposes of the Services during the Term. Subject to the terms of this MSA or any SOW, including but not limited to Section 6 (“Privacy & Confidentiality”), you acknowledge that we may provide services to third-parties similar in nature to you in similar, or even competitive, businesses or fields of practice to yours during and after the Term.
4.2. Independent Business Relationship. It is the express intention of the Parties that this MSA provides for an independent contractor relationship. Nothing in this MSA or a SOW is intended nor shall be construed to establish an employment or agency relationship between the Parties, and neither Party is authorized to act on behalf of, or bind, the other Party with respect to any matter. Neither Party will make any representation to their own or to the other Party’s employees or agents (including independent contractors, consultants and subcontractors), or to any third party that is contrary to this section.
All of your informational and background material, including but not limited to your personal data, scholarly, and/or professional information, whether tangible or intangible (“Client Data”), which is shared with or delivered to us in connection with the Services, and any and all intellectual property rights therein, shall be your sole and exclusive property. You acknowledge and agree that handling and processing of Client Data is required and essential to the Services, and agree that we will have the right to process and use, copy, distribute, publish, and display your personal data for the purposes of the Services for the duration of the Term.
6. PRIVACY & CONFIDENTIALITY.
Client Data and all other private or sensitive information which Client provides to Contractor, and which a reasonable person would understand is confidential in nature, regardless if it is marked as “confidential” or “proprietary” will be subject to the terms of the “Data Privacy Rider” attached to this MSA.
7. REPRESENTATIONS AND WARRANTIES & LIMITED LIABILITY.
7.1. By Contractor. Contractor hereby represents and warrants that (a) Contractor has the necessary skills and expertise to provide the Services and Deliverables in a timely and proper manner; (b) all Services will be provided in a professional and workmanlike manner, by qualified personnel; and (c) Contractor is an entity duly incorporated or organized, validly existing, and in good standing, and has all requisite corporate power and authority to execute, deliver and perform its obligations under this MSA and execution and performance of the MSA will not violate or constitute a breach of any agreement binding upon Contractor.
7.2. By Client. Client acknowledges that Client’s cooperation, diligence, and best efforts are essential to performance of the Services and for the delivery of any Deliverables.
Accordingly, Client hereby represents, warrants, and covenants with Contractor that: (a) Client will be truthful to Contractor; (b) all Client Data is and will be truthful, accurate, complete, and up-to-date; (c) Client will cooperate with all reasonable requests that Contractor may make in the course of performing the Services; (d) Client will keep Contractor informed of all relevant information or developments which are, or may be, material to the performance of Services; (e) abide by Contractor’s reasonable advice, recommendations, this MSA and any SOW, including any attachments, riders, or policies thereto; (f) pay Contractor’s bills on time; (g) Client will keep Contractor advised of Client’s current address, telephone, email, and other contact information, and will be prompt and responsive to Contractor’s messages and requests; and (h) Client will relay to Contractor all information regarding TED responses, including but not limited to: any callbacks, auditions, acceptance, rejections, and other communication from TED to the Client during the Term.
7.3. DISCLAIMER OF WARRANTIES. While we will make every reasonable effort to provide you with Services to your satisfaction, be advised that the ultimate outcome of our Services is subject to many factors which are beyond our reasonable control, including but not limited to, your efforts during the application process, and TED qualification and/or acceptance criteria.
We are not affiliated with, sponsored by, or endorsed by TED, and we take no responsibility for any speaking engagement with TED, including the production, performance, outcome, or the results of any TED speaking engagement and/or video which you obtain. Any TED engagement you obtain through our Services will be subject to the terms and conditions you form with TED.
Except as may otherwise be provided for under any SOW, we will not be responsible for Client’s final acceptance for any TED engagement after 200 applications for those purposes have been prepared and submitted on Client’s behalf.
For these reasons, except as expressly agreed to by Contractor in writing, including in this MSA or any SOW,
CONTRACTOR’S SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AND TO THE FULLEST EXTENT OF THE LAW, CONTRACTOR EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, INCLUDING ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE. CONTRACTOR MAKES NO WARRANTY OR GUARANTY THAT THE SERVICES CONTRACTOR PROVIDES, OR THOSE PROVIDED BY TED, WILL MEET YOUR PARTICULAR REQUIREMENTS OR SATISFACTION, OR THAT THEY WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. CONTRACTOR MAKES NO WARRANTY REGARDING THE QUALITY, FITNESS, OUTCOME OR RESULTS OF ANY TED SPEAKING ENGAGEMENT, OR THE ACCURACY, QUALITY, TIMELINESS, OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED BY TED OR ITS RELATED PARTIES.
CLIENT IS SOLELY RESPONSIBLE FOR, AND ASSUMES ALL RISKS OF ANY ENGAGEMENT WITH TED WHICH MAY BE MADE AS A RESULT OF CONTRACTOR’S SERVICES. CONTRACTOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING TED, ITS PERSONNEL OR AUDIENCE OR THEIR CONDUCT.
BY ACCEPTING THIS MSA OR ANY SERVICES FROM CONTRACTOR, CLIENT RELEASES CONTRACTOR, INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM CLIENT MAY HAVE AGAINST ANY SUCH THIRD PARTIES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
IN NO EVENT WILL CONTRACTOR (INCLUDING, FOR THE PURPOSES OF THIS SECTION, ITS AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND SHAREHOLDERS) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, SERVICE INTERRUPTIONS, PERSONAL LOSS OR INJURY, OR DEATH OR DISABILITY, HOWEVER ARISING, AND WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, WHICH ARISE OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
CONTRACTOR’S TOTAL AGGREGATE LIABILITY TO CLIENT ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS SHALL NOT EXCEED THE UNDISPUTED AMOUNTS PAID TO CONTRACTOR FOR THE SERVICES AS TO WHICH A CLAIM ARISES. CONTRACTOR SHALL NOT BE LIABLE TO YOU FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH OUR SERVICES FROM ANY CAUSE BEYOND OUR REASONABLE CONTROL.
Neither party will have any liability to the other for any failure of performance caused by acts of God, natural disasters, war, acts of terrorism, riots, labor disputes, civil or military authority, or other causes beyond our reasonable control, except for payment obligations.
Client agrees to indemnify, defend, and hold Contractor (including for the purposes of this section, its Affiliates, and the respective directors, officers, employees, and agents of each, each an “Indemnified Party”) harmless from and against all claims, taxes, losses, damages, liabilities, costs and expenses, including attorney's fees and other legal expenses, Client may incur arising directly or indirectly from: (a) any suit or proceeding brought against an Indemnified Party for violation of legally protected rights of any third parties, including but not limited to, intellectual property rights, and all other claims arising out of Contractor’s performance of Services as requested by Client; (b) any negligent, reckless, intentionally wrongful act, or fraud of Client or its employees or agents (including independent contractors, consultants and subcontractors); (c) any breach by Client of any of the representations, warranties or covenants contained in this MSA or any SOW; or (d) as a result of any agreement between Client and TED and/or its related parties.
9.1. Termination for Breach. Except as otherwise accepted to in writing, either Party may terminate this MSA and/or any SOW, for material breach of its terms and conditions, and such breach is not cured within fifteen (15) days of written notice thereof, provided however, that if the breach is incapable of cure, the non-breaching Party may terminate this MSA and/or SOW immediately upon notice.
9.2. Effect of Termination; Return of Information. Upon termination or expiration of this MSA, all undisputed amounts due to Contractor shall become due and payable within thirty (30) days of termination or expiration of the MSA. Upon termination or expiration of this MSA, or at any earlier time upon Client’s reasonable request, Contractor shall deliver to the Client all Client Data within ten (10) business days.
9.3. Survival. Upon termination or expiration of this MSA, all rights and duties of the Parties toward each other shall cease except those of Sections 3-10 and those provisions that by their nature survive termination or expiration of this MSA. To the extent that this MSA is terminated, but there are outstanding SOWs which are not also terminated, the terms and conditions of this MSA shall continue to apply for the duration of the outstanding SOWs.
10.1. No Conflicting Obligations. Each of the Parties certifies to the other that it has no pre-existing agreements or obligations that conflict with any of the provisions of this MSA, or that would preclude performance under this MSA or any SOW, and further certifies that it will not enter into any such conflicting agreement during the Term.
10.2. Publicity Release. In consideration for the Services provided, Client grants Contractor a royalty-free permission to display, publicly perform, broadcast, reproduce, record, photograph, edit, create derivative works, and otherwise use, Client’s name, voice, likeness, images (including any still photos, video or other similar media), and professional and personal biographical information, in all materials created by Contractor that incorporate any of the foregoing, on a perpetual, worldwide basis in any medium (including via the internet or social media channels), solely for the purposes of Contractor’s marketing, advertising, and promotion of the Services and businesses relating to the Services.
Except as provided above, no press release, advertising, sales literature, other publicity or statements relating to the other Party’s name, or the existence or substance of this MSA or the relationship between the Parties, may be made by either Party without the review and prior written approval of the other Party, except for disclosures required by applicable law or regulation.
10.3. Governing Law. This MSA and all claims, matters, and disputes arising hereunder shall be governed by, construed, and interpreted in accordance with the laws of the State of California, without regard to its conflicts of laws principles. The Parties agree to submit to the exclusive jurisdiction and venue of the state and federal courts located in the Central District of California.
10.4. Severability. If any provision of this MSA is deemed unenforceable, illegal or invalid by a court of competent jurisdiction, then such provision will be severed from this MSA with all remaining provisions to remain in full force and effect.
10.5. Assignment and Successors. Neither this MSA, Statement(s) of Work nor any right or obligation of Client hereunder may be assigned, or transferred by operation of law or otherwise without the express written consent of Contractor. Any attempted assignment or transfer without such consent shall be null and void. Each Party's obligations under this MSA or SOW shall be binding upon that Party and its respective successors and assigns.
10.6. Notices. Any notice required or permitted shall be provided in writing to the Parties at their most recent respective notice address set forth in a SOW and shall be deemed effective (a) upon receipt if personally delivered; (b) three (3) business days after deposit, if by certified mail, with sender’s national mail system, postage prepaid, registered, or return receipt requested; (c) upon confirmation of delivery if by facsimile or email; or (d) upon delivery by a nationally recognized express delivery service (such as FedEx).
10.7. No Waiver. No act or failure to act of any Party under this MSA or Statement of Work shall constitute a waiver of any such Party’s rights hereunder. Any waiver of any right under this MSA or SOW must be given in an express writing, signed by the Party to be bound, in order to be effective. Any waiver by a Party shall not be deemed a continuing waiver or a waiver of any other right under this MSA or under any Statement of Work.
10.8. Merger; Amendment. This MSA, along with written Statement(s) of Work, addenda and exhibits, constitutes the entire understanding and agreements between the Parties, and supersedes and replaces all prior or contemporaneous agreements with respect to the subject matter hereof. Neither Party is relying on any promise or representation that is not expressly written in this MSA or a SOW. This MSA or any Statement(s) of Work hereunder may be amended only in a writing signed by the authorized representatives of both Parties which writing expressly identifies the provision being amended.
10.9. Counterparts. All Statement(s) of Work, may be executed in multiple counterparts, all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart signature page of a SOW by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart.
10.10. Headings; Interpretation; Language. The section and subsection headings in this MSA are for convenience only and are not to be relied upon in interpreting this MSA or determining any of the rights or obligations of the Parties. This MSA may not be construed against either Party as its drafter.
Contractor and its subsidiaries and affiliates will comply with applicable data protection and privacy laws to the extent applicable to the MSA and our Services.
Contractor represents, warrants and covenants that it will, and will cause any subsidiaries, affiliates, or authorized subcontractors to, treat all Client Data relating to an identified or identifiable individual which is collected (including by automatic means), recorded, used, disclosed or stored (collectively, “processed”) in connection with the performance of Services as confidential, process Client’s Data only in accordance with Client’s reasonable instructions, as reasonably necessary for the purpose of providing the Services, or for Contractor’s legitimate business interests and uses which are disclosed to you under the MSA or a SOW. Contractor will not use Client Data for any other reasons or purposes.
Contractor will take commercially reasonable and appropriate technical, physical, and organizational measures to prevent the unauthorized or unlawful processing of Client Data, or the accidental loss or destruction of, or damage to, such information.
Contractor will, and will cause its subsidiaries, affiliates, and authorized subcontractors to, restrict access to Client’s Data to those employees, workers, agents, consultants or staff members, who need to have access in order to perform the Services, train such personnel in the care and handling of Client Data, and bind such personnel to a duty of confidentiality with respect to such information.
If Contractor hosts Client Data, or otherwise undertakes any business process function on Client’s behalf, including collection or processing of Client’s personal information, it shall be Client’s responsibility to ensure that Client’s personal information is accurate, complete and current, including, without limitation, such as actions as amending records when it becomes aware that Client Data in Contractor’s possession is inaccurate or incomplete.
Client represents and warrants at all times that (a) it is in compliance with all applicable privacy and intellectual property rights laws concerning Client Data; (b) it has all necessary rights, authority, consents, and permissions to transfer to Contractor any Client Data under applicable law; and (c) Contractor’s requested performance of Services will not violate such laws. Client shall indemnify, defend, and hold Contractor harmless against any loss, damage, fees, or costs (including reasonable attorneys’ fees) in connection with any claims, demands, suits, or proceedings, including fines or penalties issued by a data protection authority, made or brought against Contractor by a third party arising out of or in connection with a breach of any of the foregoing provisions.
Each Party shall notify the other immediately upon becoming aware of any breach of the provisions of this Data Privacy Rider or of applicable data protection and privacy laws, including, without limitation, any unauthorized or unlawful processing of Client’s Data, or any accidental loss or destruction of, or damage to, such information. Each Party shall also notify the other immediately upon becoming aware of any inquiry, investigation or enforcement proceeding relating to compliance with its data privacy compliance generally or in relation to the provisions of this Agreement.
Upon reasonable prior written notice from Client, unless shorter notice is required by circumstances, such as a potential or known security breach, and subject to all applicable confidentiality obligations agreed to by Client and Contractor, Contractor will provide, and will cause its affiliates, agents, subcontractors, independent contractors, consultants to provide, Client or any designated representative (other than a Contractor competitor), with access to such facilities, systems, records and supporting documentation as may be reasonably requested by Client in order to assess Contractor’s compliance with its obligations.
Upon termination of the Services or upon Client’s request, whichever comes first, Contractor shall, and shall cause its subsidiaries, affiliates, and subcontractors to, immediately cease all use of and promptly return to Client (or, at Client’s direction, destroy or render permanently anonymous) all of Client Data, in each case using appropriate physical, organizational and technical security measures to protect such information against loss, theft and unauthorized access, disclosure, copying, use, or modification.
NOTICE REGARDING CLIENT EMAIL ACCOUNTS & CORRESPONDENCE
Pursuant to the Services performed for Client, Contractor may create one or more email accounts with third-party service providers (e.g. a Google Gmail account) on Client’s behalf for purposes of correspondence with TED or any related third-parties.
For that reason, Client agrees that Client will not include use or disclose any Client Data, or any other personal or private matters in connection with such accounts, except as strictly necessary for furtherance of the Services requested.
In all such cases, the protection and security of Client Data will be subject to the terms and conditions of such third-party email service providers. You may review Google’s current terms and conditions here: https://policies.google.com/terms?gl=US&hl=en.
NOTICE REGARDING PAYMENT INFORMATION
Contractor does not process Client’s financial information, such as credit card information, directly. Contractor works with Stripe® and PayPal® in order to process fees paid for the Services. In order to make payment for any fee, you will be required to register with these third-party service providers. Any Client Data submitted for these reasons to our third-party service providers will be subject to their terms of service and privacy practices.
By using PayPal, you must agree to their own terms of services, located here: