Master Services Agreement

This Agreement is designed to be plain-English but enforceable. If you are unsure about any clause, seek legal counsel.

Table of Contents

1. Definitions
2. Related Agreements
3. Relationship of the Parties
4. Scope of Services
5. Order Forms; Priority of Documents
6. Term; Renewal; Price Adjustments
7. Fees; Payment; Suspension
8. Third-Party Platforms; Advertising; Compliance
9. Account Access and Client Responsibilities
10. Ownership and Intellectual Property
11. RootLogic; Call Tracking; Communications
12. Landing Pages
13. Project-Based Engagements
14. Client Approval Responsibility
15. Business Associate Agreement (HIPAA)
16. Confidentiality
17. Warranties; Disclaimers; No Guarantees
18. Limitation of Liability
19. Termination
20. Indemnification
21. Force Majeure
22. Dispute Resolution
23. Limitation Period
24. Electronic Signatures and Approvals
25. Survival
26. Miscellaneous

1. Definitions

1.1 Agency

“Agency” means Efferent Media, Inc. d/b/a Vitality Medical Marketing Group (“VitalityMMG”).

1.2 Client

“Client” means the individual or entity executing an Order Form referencing this Agreement.

1.3 Order Form

“Order Form” means any written or electronic agreement executed by the parties describing services, pricing, scope, deliverables, timelines, or special terms.

1.4 Services

“Services” means all recurring, consulting, technical, creative, advertising, strategic, CRM, automation, reporting, optimization, or project-based services described in an applicable Order Form.

1.5 Project

“Project” means a discrete, non-recurring engagement such as website design, development, branding, migration work, or other production services.

1.6 Deliverables

“Deliverables” means tangible work product specifically created for Client under a Project Order Form.

1.7 RootLogic

“RootLogic” means Agency’s CRM, automation, reporting, call tracking, messaging, and communication platform.

1.8 PHI

“PHI” means Protected Health Information as defined by HIPAA.

2. Related Agreements

This MSA may be supplemented by Order Forms, addenda, Business Associate Agreements (“BAA”), service-specific terms, or platform-specific terms. If a conflict exists, the applicable signed Order Form or addendum controls pricing and service scope. This MSA controls all legal terms unless expressly modified in writing.

3. Relationship of the Parties

Agency is an independent contractor. Nothing in this Agreement creates a partnership, fiduciary relationship, employment relationship, joint venture, franchise, or agency relationship. Agency does not serve as a fiduciary, financial advisor, investment advisor, or business partner to Client. Agency may utilize employees, subcontractors, contractors, freelancers, staffing personnel, or third-party vendors to perform Services.

4. Scope of Services

Agency shall perform the Services described in the applicable Order Form(s). Client acknowledges that Agency does not provide legal advice, accounting advice, or medical advice, and that Client remains solely responsible for all business decisions, regulatory compliance, advertising claims, medical claims, and operational decisions.

5. Order Forms; Priority of Documents

This MSA serves as the master governing agreement. Each Order Form defines pricing, service scope, deliverables, timelines, included services, and any client-specific terms.

5.1 Priority

If a conflict exists between this MSA and an Order Form, the Order Form controls only for the specific conflicting commercial term. All remaining provisions of this MSA remain in effect.

5.2 Default Notice Requirement

Unless expressly modified in a signed written addendum or Order Form, all recurring services governed by this Agreement are subject to the default sixty (60) day notice and billing-cycle termination provisions contained herein. No verbal statement, email communication, text message, employee statement, contractor statement, course of dealing, or informal communication modifies these requirements unless expressly confirmed in a written amendment signed by both parties.

6. Term; Renewal; Price Adjustments

6.1 Recurring Services Term

Unless otherwise stated in an Order Form, recurring services are provided on a continuing basis subject to this Agreement’s termination provisions.

6.2 Fixed-Term Agreements

Where an Order Form specifies a fixed initial term, the agreement automatically renews for successive renewal periods equal to the original term unless either party provides written notice of non-renewal at least sixty (60) days before renewal.

6.3 Renewal Price Adjustments

Agency may increase recurring management fees upon renewal by up to seven percent (7%) unless otherwise agreed in writing. Third-party costs, advertising spend, carrier fees, RootLogic usage fees, and platform costs are excluded from management fees and may change independently.

7. Fees; Payment; Suspension

7.1 Due Upon Receipt

Invoices are due upon receipt unless otherwise stated in writing.

7.2 Late Charges

Past due balances accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law.

7.3 Non-Refundability

Except as otherwise expressly stated in writing, all recurring fees, setup fees, onboarding fees, deposits, and retainers are non-refundable once billed or paid.

7.4 Suspension

If payment remains unpaid twenty (20) days after invoice issuance, Agency may provide written notice and suspend Services if the balance is not cured within ten (10) days. Suspension may include advertising management, RootLogic access, automations, forms, dashboards, landing pages, reporting, CRM access, or related systems.

7.5 No Chargebacks or Offsets

Client may not reverse ACH transactions, initiate chargebacks, offset balances, withhold undisputed payments, or dispute Services already rendered. Chargebacks or payment reversals constitute material breach of this Agreement. Client shall reimburse Agency for all costs, fees, penalties, or expenses incurred due to improper chargebacks or payment reversals.

8. Third-Party Platforms; Advertising; Compliance

8.1 Advertising Spend

Client is solely responsible for all third-party advertising costs, including Google, Meta, Microsoft/Bing, Reddit, and others. Advertising spend is separate from Agency management fees unless expressly stated otherwise in writing. Agency does not mark up advertising spend unless explicitly stated in writing.

8.2 Platform Policies

Client acknowledges that advertising platforms may reject ads, suspend accounts, change policies, restrict targeting, modify algorithms, or limit functionality at any time. Agency does not control platform decisions.

8.3 Third-Party Integrations

Agency is not responsible for failures, outages, API changes, data loss, suspensions, or functionality limitations caused by third-party software, vendors, platforms, plugins, hosting providers, carriers, or integrations, including but not limited to Google, Meta, Zapier, Twilio, GoHighLevel, WordPress, or AI-based systems.

8.4 Compliance

Client remains solely responsible for compliance with HIPAA, FTC rules, state medical advertising laws, privacy laws, SMS regulations, TCPA, and all applicable regulations. Agency does not provide legal compliance review.

9. Account Access and Client Responsibilities

Client agrees to provide timely approvals, platform access, credentials, content, assets, feedback, and cooperation reasonably necessary for Services. Client-caused delays do not relieve Client of payment obligations. If Client revokes Agency access, disables systems, changes permissions, or otherwise prevents Agency from performing Services during the notice period, such actions shall not relieve Client of payment obligations. If Client becomes unresponsive for forty-five (45) consecutive days or more, Agency shall not be liable for performance degradation resulting from such lack of cooperation.

Client is solely responsible for maintaining independent backups of websites, databases, hosting environments, and digital assets unless Agency’s obligation to maintain backups is expressly stated in a signed Order Form.

10. Ownership and Intellectual Property

10.1 Client-Owned Assets

Provided all balances are paid in full, Client owns advertising assets within Client-owned accounts, Client-supplied materials, historical performance data within Client-owned accounts, and final approved Deliverables specifically created for Client.

10.2 Agency-Owned Materials

Agency retains ownership of internal processes, frameworks, methodologies, automation systems, templates, scripts, workflows, reporting structures, code libraries, reusable systems, and proprietary know-how.

10.3 License

Agency grants Client a perpetual, non-transferable license to use final Project Deliverables created specifically for Client upon full payment. No ownership transfers until all balances are paid in full.

11. RootLogic; Call Tracking; Communications

Client acknowledges RootLogic fees may include a base platform fee plus usage-based charges, including SMS fees, carrier fees, voice charges, email charges, AI or automation usage fees, and related communication costs. These charges are separate from Agency management fees and may fluctuate monthly based on usage volume and carrier pricing.

Client is solely responsible for obtaining all legally required consents related to SMS communications, call recording, patient outreach, email communications, and automated messaging campaigns. Agency provides communication systems solely as operational tools and does not provide legal compliance advice regarding communication laws, TCPA obligations, or call recording requirements.

11.1 Call Tracking Numbers

Call tracking numbers are not guaranteed portable and may be terminated upon termination of Services.

12. Landing Pages

Agency-owned landing pages, templates, layouts, funnels, conversion frameworks, and related infrastructure remain Agency property. Upon termination, Client does not retain ownership of Agency-owned landing pages and Agency may disable or reassign such assets.

13. Project-Based Engagements

A Project is a discrete, non-recurring scope of work defined in an Order Form, such as website design and development. This section governs all Project engagements in addition to the general terms of this MSA.

13.1 Payment Structure

Unless otherwise stated in an Order Form, a deposit of fifty percent (50%) is due before work begins. Work does not commence until the deposit is received. The remaining fifty percent (50%) is due before launch or delivery. All balances must be paid before any Deliverable is made live or transferred. Deposits become non-refundable once work commences. Additional approved scope changes are invoiced separately and due within fifteen (15) days of invoice issuance.

13.2 Deliverable Acceptance

Client shall provide written approval or revision requests within ten (10) business days after Agency delivers a Deliverable via email, project management software, staging environment, shared link, or written notice. Failure to respond within ten (10) business days constitutes acceptance and the project proceeds to the next phase.

13.3 Client Delays

Project timelines depend on timely Client cooperation including content, images, approvals, access credentials, and feedback. Client-caused delays extend timelines accordingly and do not affect Client payment obligations.

13.4 Scope Changes

Out-of-scope requests require written approval before work begins. Verbal approvals are not binding.

13.5 Dormancy

A Project is considered dormant if no meaningful activity, feedback, or Client communication occurs for sixty (60) or more consecutive days. If Client elects to re-engage Agency on a dormant Project, the following fees apply before work resumes:

• Archive recovery fee: $500, covering retrieval and restoration of project assets;
• Project review fee: $1,000, covering full review of prior work and updating any elements requiring refresh;
• Rush surcharge: if urgency requires Agency to deprioritize other client work, an additional rush charge will be assessed based on volume of remaining work and communicated in writing before work resumes.

Agency reserves the right to renegotiate Project terms if scope has materially changed during the dormancy period.

13.6 ADA and Accessibility

Agency does not guarantee ADA compliance. Agency is not a law firm and does not provide legal opinions regarding accessibility obligations. Client is solely responsible for obtaining independent legal review regarding accessibility compliance.

13.7 Photographs and Content

Unless explicitly included in the Order Form, Project fees do not include copywriting or photography. Client is responsible for supplying all written content and images in an approved format. Content or photography requested from Agency will be estimated separately and billed at the applicable rate stated in the Order Form or as otherwise agreed in writing.

13.8 Project Cancellation

Client may cancel a Project at any time. Upon cancellation, Client remains responsible for all work completed through the cancellation date, committed vendor costs, and non-cancelable expenses. No Deliverables may be used, published, or deployed until all outstanding balances are paid in full.

14. Client Approval Responsibility

Client is solely responsible for reviewing and approving advertisements, marketing claims, testimonials, before-and-after imagery, patient communications, landing page content, website content, automation messaging, email content, SMS content, and all final published materials. Agency may rely upon Client approvals and instructions without independent verification of accuracy, legality, or regulatory compliance.

15. Business Associate Agreement (HIPAA)

Where Services involve PHI, the parties agree to execute a separate Business Associate Agreement available at vitalitymmg.com/baa. Agency is not obligated to process PHI unless a BAA is fully executed. In the event of conflict between this MSA and the BAA with respect to PHI, the BAA shall control.

16. Confidentiality

Each party agrees to protect the other’s confidential information using reasonable care and to use it only to perform under this Agreement. Confidential information excludes information that becomes public without breach, was independently developed, or was lawfully received from a third party without restriction. A party may disclose confidential information if required by law, subpoena, or court order.

17. Warranties; Disclaimers; No Guarantees

Professional Services Warranty: Agency warrants Services will be performed in good faith using commercially reasonable efforts consistent with generally accepted digital marketing practices.

No Guarantees: Client acknowledges marketing outcomes are not guaranteed. Agency does not guarantee lead volume, ROI, rankings, booked procedures, ad approvals, traffic, revenue, or business performance. Client acknowledges it has not relied upon verbal statements, forecasts, projections, sales discussions, marketing materials, or representations not expressly stated in this Agreement or a signed Order Form.

Third-Party Systems: Agency does not warrant that Services will be uninterrupted, secure, or error-free and shall not be liable for data breaches, cybersecurity incidents, ransomware events, or unauthorized third-party access except to the extent caused by Agency’s gross negligence or willful misconduct.

Except as expressly stated herein, Agency disclaims all other warranties, express or implied, including merchantability and fitness for a particular purpose.

18. Limitation of Liability

To the fullest extent permitted by law, Agency’s total cumulative liability shall not exceed the total fees paid by Client during the three (3) months immediately preceding the claim. Neither party shall be liable for consequential, indirect, punitive, or special damages, lost profits, or lost opportunities, even if advised of the possibility of such damages.

19. Termination

19.1 Recurring Services Termination

Unless otherwise expressly stated in the applicable Order Form or addendum, all recurring Services require a minimum of sixty (60) days’ written notice of termination. Notice becomes effective only on the first day of Client’s next billing cycle following Agency’s receipt of notice. Termination shall become effective only after completion of two (2) full recurring billing cycles following the effective notice date, regardless of the amount of Services actively performed during such period.

Example: If Client’s billing cycle begins on the 15th and notice is submitted June 10, notice becomes effective July 15, and termination becomes effective September 15.

19.2 Stop-Work Requests

Client acknowledges that Agency allocates personnel, onboarding resources, software systems, reporting infrastructure, automations, communication systems, strategic planning, and account management capacity in anticipation of an ongoing recurring relationship. Recurring fees are not based solely on day-to-day task execution within a given month and incorporate front-loaded work including onboarding, setup, strategic planning, campaign buildout, software provisioning, and automation implementation performed earlier in the engagement.

If Client requests that Agency pause, reduce, limit, or stop active work prior to the termination effective date, Client remains responsible for all recurring fees and committed costs through the end of the applicable notice period. Agency may reduce active work during a notice period following a stop-work request without relieving Client of payment obligations. No request to pause or stop Services shortens or eliminates the required termination notice period unless expressly agreed in a signed written addendum.

19.3 Paused Services

A request to pause Services does not constitute termination unless confirmed in writing by Agency. Paused services remain subject to recurring fees due to Agency’s continued allocation of staffing, infrastructure, software systems, reserved capacity, reporting systems, automation maintenance, and account management resources, unless otherwise agreed in writing.

19.4 Project Termination

Either party may terminate a Project engagement for material breach with fifteen (15) days written notice to cure. Client may terminate a Project for convenience at any time per Section 13.8. Project deposits are non-refundable once work has commenced.

19.5 Termination for Cause

Either party may terminate for material breach following written notice and fifteen (15) days opportunity to cure. Material breach includes failure to pay, failure to provide necessary access or cooperation, breach of confidentiality, or misuse of Agency intellectual property.

19.6 Amounts Due

Termination does not relieve Client of payment obligations incurred prior to termination. All outstanding balances become immediately due.

19.7 Transition Assistance

Transition support is optional and billable at $150/hour unless otherwise agreed in writing. Agency is not obligated to train replacement vendors, disclose proprietary methods, disclose internal systems, or continue support beyond the termination effective date.

19.8 Call Tracking Numbers and Landing Pages

RootLogic call tracking numbers will be terminated at the end of the Agreement. Agency-owned landing pages are not transferred to Client upon termination.

20. Indemnification

Each party shall indemnify the other for third-party claims arising from gross negligence, willful misconduct, or material breach of this Agreement. Client shall additionally indemnify Agency from claims relating to Client-provided content, advertising claims, testimonials, privacy violations, regulatory violations, accessibility claims, medical claims, patient communications, SMS or TCPA violations, and Client-approved materials.

21. Force Majeure

Neither party shall be liable for delays caused by events beyond reasonable control, including platform outages, vendor failures, acts of God, labor disputes, platform policy changes, governmental actions, or internet failures.

22. Dispute Resolution

22.1 Governing Law

This Agreement shall be governed by the laws of the State of New York. Venue shall be Suffolk County, New York.

22.2 Arbitration

Disputes shall be resolved through binding arbitration administered by National Arbitration and Mediation (“NAM”) in accordance with NAM’s Commercial Arbitration Rules, conducted in Suffolk County, New York.

22.3 Class Action Waiver

All disputes shall be resolved solely on an individual basis. Neither party may bring claims as a plaintiff or class member in any purported class, collective, representative, or consolidated proceeding.

22.4 Court Carveouts

Notwithstanding the arbitration requirement, Agency may pursue collections, injunctive relief, temporary restraining orders, or intellectual property enforcement in state or federal court located in Suffolk County, New York.

22.5 Attorneys’ Fees

The prevailing party shall recover reasonable attorneys’ fees and costs.

22.6 Waiver of Jury Trial

Both parties waive trial by jury.

23. Limitation Period

Any claim arising from this Agreement must be brought within one (1) year after the claim arose or be permanently barred.

24. Electronic Signatures and Approvals

Electronic signatures, emailed approvals, project management approvals, CRM approvals, and digital confirmations shall have the same force and effect as original written signatures.

25. Survival

The following provisions survive termination or expiration of this Agreement: payment obligations, confidentiality, intellectual property, limitation of liability, indemnification, dispute resolution, limitation period, non-refundability of fees, and all provisions which by their nature should survive termination.

26. Miscellaneous

26.1 Entire Agreement

This MSA and all applicable Order Forms constitute the entire agreement between the parties and supersede all prior discussions, representations, and agreements.

26.2 Severability

If any provision is held unenforceable, remaining provisions remain in effect.

26.3 Assignment

Client may not assign this Agreement without Agency’s prior written consent. Agency may assign this Agreement in connection with a merger, acquisition, or sale of substantially all assets.

26.4 Notices

Notices may be delivered by email, certified mail, or recognized courier. Notice is effective upon confirmed delivery.

Acceptance

By executing an Order Form referencing this Master Services Agreement, Client acknowledges that Client has read this Agreement, understands this Agreement, and agrees to be bound by this Agreement.