Effective Date: Jun 1, 2023
This Retreat Services Agreement (this “Agreement”) is made and entered into by and between Marco Experiences, Inc., a Delaware corporation (“Marco”), and the client named in the attached and/or incorporated Scope of Work (“Client”). Marco and Client are sometimes referred to in this Agreement individually as a “Party” and together as the “Parties”. By Marco offering this Agreement to Client and Client signing this Agreement, or by Client signing a Scope of Work (“SOW”) offered by Marco that specifically references this Agreement, the Parties agree:
1. PRODUCT & SERVICES.
1.1. During the Term of this Agreement, Marco shall provide Client certain products and services for one or more retreats or events (each an “Event”), as further described in the applicable SOW (“Services”), which SOW shall either be attached to this Agreement and incorporated herein by reference or presented separately to Client by Marco and deemed effective and incorporated herein by reference upon execution by Client. Each SOW will describe the Services and Event features expected or planned by the Parties on the SOW date, with corresponding estimated fees. However, the ultimate Services, Event features, and fees for any Event will depend on availability, third-party pricing, Client decisions, final headcount, Services requested or provided, and other factors, and Client agrees to pay pre-approved all amounts owed for an Event, both to Marco and third-party vendors, even if such amounts differ from those estimated in the applicable SOW.
1.2. The Services are based on accurate and current information provided by Client. Client undertakes that all documents, information, data, and approvals necessary for Marco to perform the Services will be made available to Marco in a timely fashion. Client will make available such personnel of its organization as are necessary to assist Marco in fulfilling its obligations under this Agreement. In case any of the above conditions are not timely complied with, or if Marco has to interrupt or delay the Services for reasons not attributable to Marco’s negligence or willful misconduct, any and all additional costs resulting therefrom shall be the responsibility of Client.
1.3. Marco will serve as an advisor and consultant for Client in performing the Services, but Client is ultimately responsible for its final selections. Client must approve all bookings before Marco will secure the booking, and Marco will provide cost estimates for each booking upon request. Marco is not responsible if certain options are not available, or for price changes after Marco provides an estimate to Client. When required by Marco or the third-party vendor or host, Client agrees to enter into booking contracts with the property, restaurants, vendor/s, or host/s, and be responsible for these contracts.
1.4. As part of the Services, Marco will designate a team member to serve as Client’s main point of contact throughout the planning process. This point of contact is separate from any onsite coordination and facilitation services during the Event, which must be requested and paid for separately.
1.5. The Services are intended to include all features and requirements for the applicable Event, but if Client wishes to separately hire a vendor for the Event, Client must communicate this desire to Marco as soon as possible, and in any event with enough advanced notice for Marco to (i) approve or reject the vendor, in Marco’s reasonable discretion, and, (ii) coordinate with the vendor for the Services, if the vendor is accepted by Marco. If Client does not provide sufficient advanced notice and/or Marco rejects a Client vendor for the Event, Client, not Marco, is responsible for any issues, additional costs, and duplicate or inconsistent services related to the vendor for the Event. Client will be responsible for all payment, contracting, communications, and other obligations related to any vendors hired by Client for any Event.
2. FEES & PAYMENT TERMS
2.1. As consideration for the Services under this Agreement, Client agrees to pay Marco the fees listed in the applicable SOW as the “Service Fee”, exclusive of taxes or service charges added to any Event components and any additional fees approved in advance by Client (such as onsite coordination and facilitation service fees). Additionally, Client will pay Marco for all amounts owed to third-party service providers and vendors for the Event booked by Marco, pursuant to the schedule in the applicable SOW, and then Marco will make the required payments to such service providers and vendors for the Event.
2.2. All fees and amounts due hereunder shall be paid on the schedule set forth in the applicable SOW; provided, however, if an Event or Event component (and/or SOW or this Agreement) is changed, rescheduled, or canceled, all amounts owed by Client shall be due within seven (7) days of Client’s receipt of the applicable invoice(s). Client agrees to pay all invoices via Stripe. Marco may pay amounts for an Event on Client’s behalf, in which case Client’s invoices will include both the third-party amounts and the amounts owed to Marco.
2.3. Any amounts due under this Agreement upon which payment is not received within five (5) days of the due date shall accrue late fees equal to the lesser of (i) 3% per month or (ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law, plus any third party late fees or charges incurred by Marco as a result of Client’s late payment. Without limiting Marco’s other rights or remedies, in the event Client is more than ten (10) days delinquent in their scheduled payments, Marco may suspend or terminate this Agreement immediately and resort to collection proceedings, and Client agrees to be responsible for Marco’s attorney's fees and costs incurred in those proceedings. Marco is not responsible for any late payments to third-party service providers or vendors for the Event resulting from Client’s late payment to Marco, or any fees, damages, or losses related thereto.
3. TERM; TERMINATION.
3.1. The Term of this Agreement will begin on the date that the Client agrees to this Agreement (in the manner described in the introduction) and will terminate as set forth in Section 3.3 below (or under Section 2.3, if applicable).
3.2. Either Party may terminate an SOW without canceling the Event(s) agreed to in such SOW at any time upon at least ten (10) days written notice to the other Party (Event cancellation is described in Section 4 below). If an SOW is terminated by Client but the related Event is not canceled, Client will pay Marco all Service Fees owed for the Event, plus all amounts owed for third-party reservations and orders incurred before the date of termination and reasonable fees for time incurred by Marco to transition the Event coordination to another service provider or to Client. If an SOW is terminated by Marco but the related Event is not canceled, Client will pay Marco all amounts owed for third-party reservations and order incurred before the date of termination, but no Service Fees will be owed to Marco.
3.3. Termination of an SOW will also terminate this Agreement if no other SOWs have been agreed to by the Parties, unless otherwise agreed by the Parties in writing.
4. CHANGES, CANCELLATIONS & RESCHEDULING.
4.1. All third-party reservations and orders made for an Event will be subject to the change, cancellation, and rescheduling policies of the third party providing the property, services, or products. If Client needs to change, cancel, or reschedule a third-party reservation or order already placed for an Event (including, without limitation, changing the headcount for the Event), Client must contact Marco immediately and Marco will work with the third party to try to accommodate the request. Marco does not make any guarantees that such requests will be granted and is not responsible or liable for the denial of any such request, or any results, damages, or losses related thereto. Client is responsible for paying all change, cancellation, and rescheduling fees and additional costs (or payment in full if the changing, rescheduling, or cancellation request is denied), and in some instances Client may not receive a refund depending on the third party’s policy.
4.2. Once Marco has begun providing Services for an Event, meaning expending staff time or booking with or paying third parties in relation to the Event, Client agrees to pay all amounts owed for the Event, including all applicable Service Fees, even if Client cancels, changes, or reschedules the Event (or any portion of the Event) for any reason. If Client pre-paid any amounts for a canceled Event or Event component(s), Marco will refund all such amounts, minus the Service Fees owed to Marco and any applicable third-party cancellation fees.
4.3. If all Events agreed upon in an SOW are canceled, the SOW will automatically terminate unless otherwise agreed by the Parties and Client will owe Marco the amounts set forth in this Section 4, if any.
5. MARCO OWNERSHIP.
Client acknowledges and agrees that Marco has certain specialized knowledge and skills in the design, development, and execution of the Services, which forms an integral and continuing part of its business; and in the process of performing the Services under this Agreement and services for others, Marco has developed, and will continue to develop, certain underlying concepts and ideas, techniques, skills, improvements, methods, and know-how applicable to its event planning and coordination services (collectively referred to as the “Business Methodologies”). Notwithstanding anything to the contrary in this Agreement, Marco shall retain all right, title, and interest in and to all Business Methodologies, including those which it may discover, adapt, or create in the performance of the Services for Client. Furthermore, Client acknowledges that, as part of performing the Services, Marco may utilize tools, products, and/or software programs owned by Marco, or which have been licensed to Marco by a third party (collectively, “Marco IP”), and Marco IP is and shall remain the sole property of Marco (or its licensor) for the duration of this Agreement.
6.1. Marco warrants that (i) it has the full power and authority to enter into and perform this Agreement; and (ii) the Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards.
6.2. Client represents and warrants that (i) it has the full power and authority to enter into and perform this Agreement; and (ii) any content in whatever form provided to Marco to use for the Services shall be current, accurate, and complete to the best of Client’s knowledge and will not infringe or misappropriate any intellectual property or other rights of any third party.
6.3. Either party must notify the other promptly of any claimed breach of the foregoing warranties. Client’s exclusive remedy and Marco’s entire liability for breach of warranty will be, at Client’s option, re-performance of the deficient Services or termination of the Agreement (and therefore all active SOWs) and return of the portion of the fees paid to Marco by Client for the deficient Services.
7.1. Each Party shall (a) not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person any Confidential Information of the other Party without the other Party’s prior written consent; (b) use at least the same degree of care and caution to protect the other Party’s Confidential Information from disclosure that it employs with respect to its own confidential information, and in any event reasonable care and caution; (c) only use the other Party’s Confidential Information to perform its obligations under this Agreement and only disclose the other Party’s Confidential Information to those of its employees, contractors, and vendors who require access to it in order for the Party to be able to perform its obligations under the Agreement; and (d) take appropriate action by instruction, agreement or otherwise with persons allowed such access to satisfy the foregoing obligations.
7.2. “Confidential Information” means all confidential and proprietary information of a Party disclosed orally or in writing by one Party to the other that is identified as confidential or that is reasonably understood to be confidential under the circumstances of disclosure. Confidential Information includes, without limitation, proprietary information, strategies, plans, processes, procedures, algorithms, materials, client lists, guest names and personal and/or business information, trade secrets, research, and technical manuals supplied to either Party.
7.3. Confidential Information shall not include any information which (i) is or becomes publicly available through no fault of the receiving party; (ii) is already in the receiving party’s possession without restriction on disclosure when disclosed by the disclosing party; (iii) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.
8. DISCLAIMER; LIMITATION OF LIABILITY.
8.1. ALL SERVICES HEREUNDER SHALL BE PROVIDED OR DELIVERED ON AN “AS-IS” BASIS. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY CONDITIONS, REPRESENTATIONS, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY LAW.
8.2. IN NO EVENT SHALL MARCO BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, LOSS OF FUNDS, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE PARTY FROM WHOM SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF MARCO FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO MARCO FOR THE APPLICABLE EVENT.
8.3. MARCO DOES NOT MAKE ANY GUARANTEES OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR OR TO ANY OF THE SERVICES, PROPERTIES, EQUIPMENT, FOOD, BEVERAGES, OR OTHER ELEMENTS OF THE EVENTS, EVEN IF BOOKED BY MARCO, INCLUDING, WITHOUT LIMITATION, CLIENT’S GUESTS OR PARTICIPANTS IN THE EVENT.
9.1. Client agrees to indemnify, defend, and hold harmless Marco and its officers, directors, employees, contractors, representatives, agents, and assigns from and against any and all third-party lawsuits, legal actions, or legal proceedings and any related costs and expenses, including reasonable attorney’s fees (collectively, “Claims”), related to or arising from any Event governed by this Agreement, including, but not limited to, any bookings, services, or products for the Event(s) or any acts or omissions of Client or Client’s employees, contractors, officers, directors, investors, participants, and guests, other than to the extent such a Claim results from Marco’s gross negligence or willful misconduct. Marco agrees to give Client prompt written notice in the event of any Claim arising to which Marco believes indemnification is relevant and necessary. No Claims may be settled without Marco’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
9.2. Marco agrees to indemnify, defend, and hold harmless Client and its officers, directors, members, employees, contractors, representatives, agents, and assigns from and against any and all Claims, related to or arising from any grossly negligent acts or omissions of Marco or Marco’s employees, contractors, officers, directors, investors, other than to the extent such a Claim results from Client’s negligence or willful misconduct. Client agrees to give Marco prompt written notice in the event of any Claim arising to which Client believes indemnification is relevant and necessary. No Claims may be settled without Client’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed.
10.1. Force Majeure. If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either Party’s reasonable control, including, without limitation, acts of god, pandemic, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, strikes, lock-outs, or work stoppage, and if the Party unable to carry out its obligations gives the other Party prompt written notice of such event, then the obligations of the Party invoking this provision shall be suspended to the extent necessary by such event. For avoidance of doubt, this “Force Majeure” section only applies to each Party’s obligations under this Agreement, and does not apply to an Event itself; changing, cancellation, and rescheduling of Event components (including the entire Event) is governed by Sections 3 and 4 above.
10.2. Independent Contractor. Marco and Client are and will remain independent contractors as to each other, and no joint venture, partnership, agency, or other relationship which would impose liability upon one Party for the act or failure to act of the other will be created or implied hereby or herefrom.
10.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions thereof.
10.4. Arbitration. Any dispute between Marco and Client arising under this Agreement will be submitted to binding arbitration in San Francisco County, California, in accordance with the rules of the American Arbitration Association.
10.5. Assignment. Client shall not assign this Agreement without the prior written consent of Marco. This Agreement will inure to the benefit of and will be binding upon the successors and permitted assigns of the parties.
10.6. Severability; Waiver. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. The waiver of any one default will not waive any other default
10.7. Entire Agreement. The Agreement, including any signed SOWs and Proposals, constitutes the entire agreement, and supersedes all prior negotiations, understandings, or agreements (oral or written), between the Parties concerning its subject matter. The failure of either Party to enforce its rights under the Agreement at any time for any period will not be construed as a waiver of such rights. No change, modification, or waiver to the Agreement will be effective unless in writing and signed by both Parties. In the event that any provision of the Agreement is determined by any court of competent jurisdiction to be unenforceable, such provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law.