Master Services Agreement

STANDARD TERMS AND CONDITIONS

These Standard Terms and Conditions are part of the attached Services Agreement (“Services Agreement”), which, together with Exhibits A, B, C or D and any other exhibits signed by both parties, constitute one agreement.  Any purchase order or similar documents submitted by Client is subject to this agreement unless otherwise agreed in writing by Contractor.

 

1. Engagement.  Contractor shall perform the services set forth on Exhibit A (the “Services”).  Unless specified as a “flat-rate” or “fixed-fee”, any estimates for the Services set forth in this agreement are estimates only, and that Contractor does not represent or warrant that the Services can be performed within the parameters of any estimate so provided. If the Services will exceed Contractor’s estimate, Contractor will inform Client in writing prior to incurring such expense, and Client will have the right to continue the Services for the revised estimate or decline the further work by notifying Contractor in writing. In the event that Client declines further work, Client shall pay Contractor for work already completed.

 

2. License.  This Agreement grants to Client a non-exclusive, perpetual, non-sublicensable license (the “License”) to install and use Monitors and Scripts (defined below) on one database.  For the avoidance of doubt, this agreement does not permit the installation of Monitors and Scripts across multiple databases.  To the extent the Client has entered into a maintenance agreement with the Contractor, the Contractor agrees to provide support with respect to the Monitors and Scripts.  Client agrees that it will not disclose, donate or resell the Monitors and Scripts to any other party. “Monitors and Scripts” means any code made available by Contractor to Client, except third party software.

 

3. Compensation. As compensation for the Services and for performance rendered by Contractor, Client shall pay to Contractor the compensation of the default hourly rate of $275 per hour unless set forth on Exhibits A, B, C or D and any other exhibits signed by both parties. If the Services are performed on an hourly basis, Client will be billed only for hours actually expended, rounded to the 0.25 hour. Contractor shall invoice Client for all sums due to Contractor. Payments to Contractor shall be due and payable within 15 days from the date of invoice. Any outstanding balance 30 days past due will accrue, until paid, interest at the rate of 1.5% per month or the maximum rate allowed by applicable law, whichever is lower. Contractor may, at its election, terminate this agreement immediately upon Client’s failure to timely pay.

 

4. Taxes; Expenses; Charges. Client shall pay any tax, expense, or charge required under any laws, rules, or regulations pertaining to the sale, use, or receipt of the Services. Except as expressly stated elsewhere in this agreement, Contractor shall pay all expenses incurred in the performance of the Services; provided, however, that Client shall reimburse Contractor for any travel-related expenses and reasonable expenses for lodging and meals when Contractor is required to perform the Services at locations other than Contractor’s offices.

 

5. Term. This agreement is effective as of the date stated in the introductory clause and shall terminate on the earlier to occur of (1) Contractor’s completion of the Services, and (2) upon earlier termination in accordance with this agreement pursuant to Section 6 (“Termination”).

 

6. Termination. This agreement may be terminated as follows:

  1. This agreement may be terminated by the mutual written consent of the parties;
  2. Either party may terminate this agreement upon a material breach by the other party, provided the non-breaching party has provided written notice of such breach and a 15-day period in which to cure the breach;
  3. Client may terminate the agreement for convenience at any time on thirty days advance written notice. If Client terminates the agreement for convenience, in addition to any other amounts owed to Contractor, Client agrees to pay to Contractor an amount equal to fifty percent (50%) of the remaining balance.
  4. Either party may immediately terminate this agreement in the event the other party becomes insolvent or is the subject of an “order for relief” as that term is defined in the U. S. Bankruptcy Code, or in the event of an assignment or other arrangements for the benefit of the other party’s creditors; or
  5. Contractor may terminate this agreement for any reason upon 30 days written notice to Client.

7. Effect of Termination.  Upon any termination of this agreement: (1) Client will immediately pay to Contractor all amounts due; (2) Client will pay to Contractor fees (at the current default Hourly Rate) and expenses incurred in connection with the transfer of services to another provider.

 

8. Independent Contractor. Contractor shall perform the Services as an independent contractor. Nothing contained in this agreement shall be deemed to create an agency, joint venture, partnership or franchise relationship between the parties. Contractor is not entitled to any Client employment rights or benefits and is not authorized to act on behalf of the Client. Contractor shall be solely responsible for any and all tax obligations of Contractor, and Client shall not be responsible for withholding any taxes from Contractor’s compensation paid under this agreement.

 

9. Non-exclusivity. During and after the term of this agreement, Contractor may, in its sole discretion, provide services of any type to any person or entity, in any industry or trade, and the provision of such services by Contractor shall not give rise to any liability to Client on the part of Contractor.

 

10. Confidentiality. Each party receiving Confidential Information (defined below) shall: (1) treat as confidential, and preserve the confidentiality of, the Confidential Information of the disclosing party; (2) use the Confidential Information solely for the purposes of this agreement; (3) other than in connection with performing the Services, not copy such Confidential Information unless specifically authorized by the disclosing party; and (4) limit dissemination of the Confidential Information to personnel to whom disclosure is necessary for the purposes of this agreement. The party receiving Confidential Information shall promptly return all Confidential Information, together with all copies or any other form of reproduction, at the disclosing party’s request. The obligations imposed by this agreement will not apply to any information that:  (1) is already in the possession of the receiving party as shown by documentation; or (2) is or becomes publicly available through no fault of the receiving party; or (3) is obtained from a third person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed. “Confidential Information” means any and all technical or business data or information (including third party information), and/or software furnished, in whatever form or medium, by either party to the other regardless of whether such technical or business data or information is marked or identified as “Confidential.”

 

11. Non-solicitation. During the term of this agreement and for a period of 12 months thereafter, Client shall not, directly or indirectly, solicit, recruit, or employ any employee, agent, consultant, or contractor of Contractor (or any of its affiliates) without the prior written consent of Contractor, or solicit or recruit any such person to leave Contractor (or any of its affiliates) for any reason. Client agrees that the extensive damages resulting from Client’s breach of the foregoing non-solicitation provision would be difficult to ascertain and therefore agrees that any violation of this provision by Client will result in Client immediately owing to Contractor, as liquidated damages, an amount equal to 100% of the solicited person’s annual compensation.

 

12. Intellectual Property.  Unless otherwise set forth on any signed Exhibit, Contractor shall own exclusively the Bundled Scripts, all Work Product (defined below) and all other inventions and improvements developed or created by Contractor, whether alone or in conjunction with others. “Work Product” means custom materials, software, scripts, or other deliverables developed by Contractor in performance of the Services.  Provided Client has paid to Company all amounts due hereunder, Contractor grants to Client a non-exclusive, perpetual, non-sublicensable license to use and exploit the Bundled Scripts and Work Product in accordance with the terms of this agreement.

 

13. Obligations of Contractor. Contractor shall perform the Services in a manner that meets generally acceptable standards in Contractor’s industry. Contractor shall make commercially reasonable efforts to meet the deadlines set forth on Exhibit A. Failure by Contractor to meet any deadline shall not, unless specifically set forth on Exhibit A, be considered a breach by Contractor. Client acknowledges that a delay on its part in perform its obligations hereunder may delay performance by Contractor.

 

14. Obligations of Client. Client shall:

  1. Secure and provide the hardware, software, materials, information, and access to Client’s facility, servers and software packages necessary for performance of the Services;
  2. Implement the appropriate policies and from time to time undertake customary procedures to ensure the application, operation, protection, integrity, maintenance and support of its systems, hardware, software, and data, including, without limitation, training, safeguards, and routine backups;
  3. Provide sufficient secure space at Client’s facility for storage by Contractor of materials;
  4. To the extent that Contractor or any third party manufacturer specifies any preventative maintenance in connection with the Services, provide the hardware, software, materials, information, and access to Client’s facility, servers and software packages as are necessary for Contractor or any third party to effect such maintenance and to pay all expenses incurred thereby; and
  5. To the extent an installation of Work Product is necessary for Contractor’s performance of the Services, Client shall (A) secure the coordination of all other contractors, if any, involved in the project; (B) prepare and maintain of the site for such Installation, including, without limitation, relocate existing hardware or fixtures; secure and prepare special flooring or surfaces;  provide necessary electrical power, circuit protection, communication lines, proper air conditioning, and humidity control; and dispose of all refuse from the installation site.

 

15. Third Party Products. Client acknowledges that Contractor may use or implement software, products, materials, services, or systems manufactured or created by third parties. Client agrees that such third-party products may be subject to disclaimers, limitations of liability and restrictions made or imposed by such third party developers to which Client would be subject.

 

16. Incompatible Technologies.  Client acknowledges that technologies are not universally compatible, and that there may be limitations in functionality or results that differ from the documentation on services or Monitors and Scripts. Client acknowledges that Contractor may be unable to monitor, manage or patch said incompatibilities even with the assistance of third parties.  Contractor will inform Client when such a situation exists.  Client agrees to hold Contractor harmless in any case.

 

17. Data Backup.  Unless otherwise explicitly set forth Exhibits A, B, C or D and any other exhibits signed by both parties, Client understands and agrees that Client has the sole responsibility of maintaining and backing up Client data at its facility.  In all cases, including when Contractor has agreed to perform backup services on behalf of Client, Client agrees to hold Contractor harmless from any losses resulting from the loss of data during the performance of Services or otherwise.

 

18. Disclaimer. CONTRACTOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEROPERABILITY, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CONTRACTOR DOES NOT WARRANT THE WORK, SERVICES, OR WORK PRODUCT PROVIDED HEREUNDER WILL BE UNINTERRUPTED AND/OR ERROR-FREE. CONTRACTOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST LOSS OF DATA, SECURITY BREACHES, THIRD PARTY INTERRUPTION OR INTERFERENCE WITH DATA OR NETWORKS, AND EXPOSURE OR RELEASE OF PERSONALLY IDENTIFIABLE INFORMATION, REGARDLESS OF CAUSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CLIENT ACKNOWLEDGES THAT CONTRACTOR SHALL BEAR NO RESPONSIBILITY FOR THE PERFORMANCE, REPAIR, OR WARRANTY OF ANY OF CLIENT’S SOFTWARE, HARDWARE, PRODUCTS, OR SERVICES PROVIDED TO CLIENT BY CONTRACTOR OR BY A THIRD PARTY, UNLESS OTHERWISE SET FORTH HEREIN.

 

19. Indemnification.

(a) Contractor will indemnify, defend at its expense and hold harmless, Client, its officers, directors, affiliates, agents and employees from any and all third party losses, liabilities, damages, claims, demands, litigation, expenses and liabilities (including related costs and reasonable attorneys’ fees) (“Liabilities”) arising or resulting, directly or indirectly, from (1) infringement by the Work Product of any third party intellectual property rights; (2) the grossly negligent or willful misconduct of Contractor; or (3) Contractor’s breach of any provision of this agreement.

(b) Client will indemnify, defend at its expense and hold harmless, Contractor, its officers, directors, affiliates, agents and employees from any and all Liabilities arising or resulting, directly or indirectly, from (1) the use or exploitation of the Work Product or Services by Client; (2) the grossly negligent or willful misconduct of Client; or (3) Client’s breach of any provision of this agreement.

(c) A party seeking indemnification must promptly notify the other party of the Liability and agrees to provide such party with all necessary information and reasonable cooperation, provided that a party’s failure to provide notice of the Liability shall not excuse the other party’s indemnification obligations, except to the extent that such party has been materially prejudiced by the failure of the other party to provide notice.  The indemnifying party shall not settle any such demand, claim, suit or investigation without the consent of the indemnified parties involved.

20. LIMITATION OF LIABILITY. NEITHER PARTY IS LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, INCLUDLING COMMERCIAL LOSS AND LOST PROFITS, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY OR FORESEEABILITY, DIRECTLY OR INDIRECTLY ARISING UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THIS LIMITATION OF LIABILITY DOES NOT APPLY TO ANY BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 10 OF THIS AGREEMENT. THE AMOUNT OF DAMAGES FOR CONTRACTOR’S LIABILITY TO CLIENT SHALL NOT EXCEED THE AMOUNT PAID TO CONTRACTOR HEREUNDER.

 

21. Promotion. Contractor may, in its public advertising and promotional materials, reference Client and the Services and utilize Client’s logo, subject to Client’s prior approval of said promotional materials, such approval not to be unreasonably withheld.

 

22. Notices. All notices, requests or demands hereunder shall be in writing and shall be delivered in person, or by registered or certified mail, return receipt requested, or sent by a nationally recognized overnight delivery service to the respective address set forth on the first page of this agreement. Such addresses may be changed, from time to time, by means of a notice given in the manner provided hereby.

 

23. Remedies.

(a) The parties agree that any breach of any provision of this agreement regarding confidentiality, non-solicitation, or ownership of intellectual property cannot reasonably or adequately be compensated in damages in an action at law and may cause irreparable harm and significant injury and damage to the non-breaching party. The parties shall therefore be entitled, in addition to any other remedies they may have under this agreement or otherwise, to seek immediate preliminary, interim, and permanent injunctive or equitable relief to prevent or curtail any actual or threatened breach of such provision.

(b) If within 30 days of the installation of any Work Product, Client provides Contractor with written notice of a material defect in such products or materials and Contractor confirms the existence of such defect, Contractor shall correct such defect, replace any defective products or materials, or return to Client the total amount paid by Client to Contractor for such defective products or materials. Client shall have no other remedies for such defects under this agreement.  To the extent required by Contractor, any defective products or materials must be returned by Client to Contractor or any repair facility designated by Contractor for inspection at Client’s sole expense.

 

24. Assignment. This agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. The parties may not assign this agreement or the License, including any rights or obligations under this agreement or the License, by operation of law or otherwise, without prior written consent of the other party, which shall not be unreasonably withheld.  The acquisition of all or substantially all of the stock of the Client by any third party shall constitute an assignment for purposes of this agreement.

 

25. Force Majeure. Except with regard to payment obligations, neither party will be liable to the other party arising out of delays or failures to perform under this agreement to the extent that any such delays or failures result from a cause beyond the reasonable control of the party affected.

 

26. Amendment. This agreement cannot be amended or changed except in a writing signed by both parties.

 

27. Waiver. No failure or delay by any party to insist upon the strict performance of any term, condition, or covenant of this agreement, or to exercise any right, power, or remedy under this agreement shall constitute a waiver of any term, condition, covenant, right, power or remedy or of any breach, or preclude any party from exercising any right, power or remedy at any later time.  The waiver of any right, power or remedy must be in writing to be effective.

 

28. Governing Law; Jurisdiction. This agreement, and all matters arising out of this agreement, including all tort and fraud claims, is governed by laws of the State of New York, without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the state courts of the State of New York and to the jurisdiction of the United States District Court for the Southern District of New York, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

 

29. Severability. If any provision of this agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the extent possible.  In any event, all other provisions of this agreement shall be deemed valid and enforceable to the fullest extent possible.

 

30. Entire Agreement. This agreement (consisting of the attached Services Agreement and any exhibits) sets forth the entire agreement between Contractor and Client regarding the terms of Contractor’s engagement by Client and supersedes any prior written or oral agreements between the parties.

 

31. Counterparts. This agreement may be executed in multiple counterparts, each of which will be deemed an original, and all of which together shall constitute one and the same instrument.

 

32. Survival. Sections 2, 3, 7, 10-12, 16-19, 21 and 26 will survive termination of this agreement.