Master Services Agreement
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Jun 27, 2024
MASTER SERVICES AGREEMENT
This Master Services Agreement is comprised of this Master Services Agreement (this “Master Services Agreement”), all Statement of Works (as defined below), and all other schedules, attachments, and appendices referenced in this Master Services Agreement (collectively, this “Agreement”), and dated as of the even date with that certain initial Statement of Work (the “Effective Date”) entered into by and between those certain parties as reflected on the signature page of the initial Statement of Work (the “Parties,” and each a “Party”). By entering into the initial Statement of Work, and any amendments thereto, Service Provider (as defined below) and Customer (as defined below) accept and agree to be bound and abide by this Master Services Agreement.
RECITALS
WHEREAS, Service Provider has the capability and capacity to provide certain software development, consulting, and related services and work product; and
WHEREAS, Customer desires to retain Service Provider to provide the services under the terms and conditions set out below, and Service Provider is willing to perform such services.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
Definitions.
“Acceptance” has the meaning set forth in Section 5.7 herein.
“Acceptance Tests” means such tests as may be conducted in accordance with Section 5.4 of this Master Services Agreement and the applicable Statement of Work to determine whether any Software Deliverable meets the requirements of this Agreement and the applicable Statement of Work.
“Affiliate” of a Party means any person that directly or indirectly, controls, is controlled by, or is under common control with such Party.
“Aggregate Software” means the Software, as a whole, to be developed or otherwise provided under a particular Statement of Work. For avoidance of doubt, if a Statement of Work provides for a single Software Deliverable, such Software Deliverable shall also constitute Aggregate Software.
“Agreement” has the meaning as set forth in the preamble.
“Approved Third-Party Materials” means the Third-Party Materials that Customer has approved to be included in or for use in connection with any Software developed or provided hereunder and which are specifically identified in the Statement of Work for such Software.
“Approved Open Source Software” means Open Source Software that Customer has approved to be included in or used in connection with any Software developed or provided hereunder and which are specifically identified in the Statement of Work for such Software.
“Background Technology” means all Software, data, know-how, ideas, methodologies, specifications, and other technology in which Service Provider owns such Intellectual Property Rights as are necessary for Service Provider to grant the rights and licenses set forth in Section 9.2 of this Master Services Agreement, and for Customer (including its licensees, successors, and assigns) to exercise such rights and licenses, without violating any right of any third party or any applicable laws, or incurring any payment obligation to any third party, and that: (a) are identified as background technology in any Statement of Work; and (b) were or are developed or otherwise acquired by Service Provider prior to Effective Date, with respect to the Initial Statement of Work, or the date of Customer’s request for additional Services, with respect to any other Statement of Work.
“Change” has the meaning set forth in Section 3.3 herein.
“Change Agreement” has the meaning set forth in Section 3.3(b) herein.
“Change of Control” means the occurrence of any of the following: (i) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of a Party taken as a whole, to any person (including any “person” as that term is used in Section 13(d)(3) of the Securities and Exchange Act of 1934, as amended); (ii) the adoption of a plan relating to the liquidation or dissolution of a Party; or (iii) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any person (including any “person” (as defined above)) becomes the beneficial owner, directly or indirectly, of more than 50% of the voting securities of such Party measured by voting power rather than number of shares, units or the like. Notwithstanding the preceding, a conversion of a Party from a limited partnership, corporation, limited liability company or other form of entity to a limited liability company, corporation, limited partnership or other form of entity (including by way of merger, consolidation, or liquidation) or an exchange of all of the outstanding equity interests in one form of entity for equity interests in another form of entity or the transfer or redomestication of such Party to or in another jurisdiction shall not constitute a Change of Control, so long as following such conversion, exchange, transfer, or redomestication the persons who beneficially owned the capital stock of such Party immediately prior to such transactions beneficially own in the aggregate more than 50% of the voting stock of such entity.
“Change Proposal” has the meaning set forth in Section 3.3(a) herein.
“Change Request” has the meaning set forth in Section 3.3 herein.
“Confidential Information” has the meaning set forth in Section 10.1 herein.
“Customer” means the counterparty(ies) to the initial Statement of Work.
“Customer Materials” means all materials and information, including documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, directly or indirectly provided or made available to Service Provider by or on behalf of Customer in connection with this Agreement, regardless of whether the same are (a) owned by Customer, (b) owned by a third party, or (c) in the public domain.
“Customer Resources” has the meaning set forth in Section 4.1(b) herein.
“Defaulting Party” has the meaning set forth in Section 12.3 herein.
“Deliverables” means all deliverables, including Software Deliverables, and all other documents, work product, and other materials that Service Provider is required to or otherwise does provide to Customer under this Agreement and otherwise in connection with any Services, including any and all items specifically identified as ‘Deliverables’ in any Statement of Work.
“Disclosing Party” has the meaning set forth in Section 10.1 herein.
“Effective Date” has the meaning as set forth in the preamble.
“FAA” has the meaning set forth in Section 27 herein.
“Fees” has the meaning set forth in Section 7.1 herein.
“Force Majeure Events” has the meaning set forth in Section 29 herein.
“Harmful Code” means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop-dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person, or otherwise deprive Customer of its lawful right to use the Software.
“Impacted Party” has the meaning set forth in Section 29 herein.
“Implementation Plan” means the schedule included in each Statement of Work setting forth the sequence of events for the performance of Services under such Statement of Work, including the Milestones and milestone dates thereunder.
“Indemnified Party” has the meaning set forth in Section 14.1 herein.
“Indemnifying Party” has the meaning set forth in Section 14.1 herein.
“Integration Testing” has the meaning set forth in Section 5.4(c) herein.
“Intellectual Property Rights” means all intellectual property rights throughout the world, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other moral or intangible rights, in each case whether registered or unregistered, and all applications for registration thereof.
“Losses” has the meaning set forth in Section 14.1 herein.
“Master Services Agreement” has the meaning set forth in the preamble.
“Milestone” means an event or task described in the Implementation Plan under any Statement of Work that must be completed by the corresponding milestone date set forth therein.
“Non-Conformity” means any failure of any (a) Software or documentation to conform to the requirements of this Agreement; or (b) Software to conform to the requirements of this Agreement or the specifications or documentation therefor.
“Notice” has the meaning set forth in Section 18 herein.
“Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software, or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) the GNU General Public License (GPL), Lesser/Library GPL (LGPL), or any license from or through GNU; (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; (h) the Apache License; and (i) the MIT License.
“Operating Environment” means, collectively, the Customer platform, environment, system in, on, or under which Software is intended to be installed and operated, as set forth in the Statement of Work for such Software, including such structural, functional, and other features, conditions, and components as hardware, operating software, and system architecture and configuration.
“Party” and “Parties” have the meaning as set forth in the preamble.
“Receiving Party” has the meaning set forth in Section 10.1 herein.
“Receiving Party’s Group” has the meaning set forth in Section 10.2 herein.
“Service Provider” means SZNS Solutions LLC, a Delaware limited liability company.
“Services” means any of the services provided under this Master Services Agreement or any Statement of Work.
“Software” means the computer program(s), including any and all software implementations of algorithms, models, and methodologies, programming tools, scripts, and routines, the Service Provider develops or otherwise provides under this Agreement, as described more fully in each Statement of Work, including all updates, upgrades, new versions, new releases, enhancements, improvements, and other modifications made or provided pursuant to the Support Services, as applicable. As context dictates, Software may refer to one or more Software Deliverables or Aggregate Software.
“Software Deliverable” means any Software, together with the documentation therefor, required to be delivered as a Milestone as set forth in the Implementation Plan for such Software.
“Source Code” means the human readable source code of the Software to which it relates, in the programming language in which such Software was written, together with all related flow charts, code, and technical documentation, including a description of the procedure for generating object code, all of a level sufficient to enable a programmer reasonably fluent in such programming language to understand, build, operate, support, maintain, and develop modifications, upgrades, updates, adaptations, enhancements, new versions, and other derivative works and improvements of, and to develop computer programs compatible with, the Software.
“Statement of Work” means any statement of work entered into by the Parties that incorporates this Master Services Agreement by reference.
“Subcontractor” has the meaning as set forth in Section 2.8 herein.
“Support Services” means the Software maintenance, hosting, and support services the Service Provider is required to provide under this Master Services Agreement and as set forth in the applicable Statement of Work.
“Taxes” has the meaning as set forth in Section 7.7 herein.
“Term” has the meaning as set forth in Section 12.1 herein.
“Testing Period” has the meaning as set forth in Section 5.4(b) herein.
“Third-Party Materials” means any materials and information, including documents, data, know-how, ideas, methodologies, specifications, software, content, and technology, in any form or media, in which any person other than Customer or Service Provider owns any Intellectual Property Right, but specifically excluding Open Source Software.
“Work Product” means all Software, documentation, specifications, and other documents, work product, and materials related thereto, that Service Provider provides to Customer hereunder, together with all ideas, concepts, processes, and methodologies developed in connection therewith, whether or not embodied therein other than materials expressly identified in an exhibit to this Master Services Agreement or a Statement of Work, Background Technology, Approved Third-Party Materials, or Approved Open Source Components.
Services.
Engagement of Service Provider. Customer hereby engages Service Provider, and Service Provider hereby accepts such engagement, to develop and provide Services related thereto as described herein or otherwise requested by Customer from time to time and described in Statements of Work therefor, all on the terms and conditions set forth in this Agreement.
Performance of Services. Service Provider shall provide all Services and Work Product hereunder in accordance with the generally recognized industry standards in Service Provider's field and in accordance with the terms, conditions, and specifications set forth in this Agreement.
Software Development. Service Provider shall design, develop, create, test, deliver, install, configure, integrate, customize, and otherwise provide and make fully operational Software as described in a Statement of Work in accordance with the terms and conditions of this Master Services Agreement and such Statement of Work. Service Provider shall ensure all Software complies with the specifications therefor. Except explicitly otherwise stated in the applicable Statement of Work, Service Provider shall provide all Software to Customer in both object code and Source Code form.
Consulting Services. Service Provider shall provide professional consulting services as described in a Statement of Work in accordance with the terms and conditions of this Master Services Agreement and such Statement of Work.
Third-Party Materials.
Service Provider shall not include in any Software, and operation of all Software in accordance with its specifications and documentation shall not require, any Third-Party Materials, other than Approved Third-Party Materials specifically described in a Statement of Work.
Except as otherwise provided in the applicable Statement of Work, Service Provider shall secure, at its sole cost and expense, all necessary rights, licenses, consents, approvals, and authorizations necessary for Customer to use, perpetually, all Approved Third-Party Materials as incorporated in or otherwise used in conjunction with Software as specified in the applicable Statement of Work or elsewhere in this Master Services Agreement.
Open Source Software. Service Provider shall not include in any Software any Open Source Software, other than Approved Open Source Software specifically described in the Statement of Work for such Software. Service Provider shall provide Customer with a complete, machine-readable copy of the Source Code for Approved Open Source Software in accordance with the terms of the respective Open Source Software license.
Relationship Managers. Throughout the Term of this Master Services Agreement, each Party shall maintain within its organization a relationship manager to serve as such Party’s primary point of contact for day-to-day communications, consultation, and decision making regarding this Agreement. Each Party shall ensure its relationship manager has the requisite authority and skill to perform in such capacity. The Parties’ initial relationship managers are stated in the initial Statement of Work. Each Party shall use reasonable efforts to maintain the same relationship manager in place throughout the Term. If either Party’s relationship manager ceases to be employed by such Party or such Party otherwise wishes to replace its relationship manager, such Party shall promptly name a new relationship manager by written notice to the other Party.
Subcontractors. Service Provider may engage, without the approval of Customer, any third party to perform Services (including to create any Work Product) hereunder (a “Subcontractor”). Engaging a Subcontractor shall not relieve Service Provider of its representations, warranties, or obligations under this Agreement.
Statements of Work. Service Provider shall provide Services and Work Product pursuant to Statements of Work entered into as set forth herein. No Statement of Work shall be effective unless signed by both Parties. The term of each Statement of Work shall be as set forth therein or, if no term is specified, shall commence on the Parties’ full execution thereof and terminate when the Parties have fully performed their obligations thereunder. Unless a Statement of Work expressly states otherwise, each Party shall have the right to terminate such Statement of Work as set forth in Section 12.2 and Section 12.3 of this Master Services Agreement.
Statement of Work Requirements. Each Statement of Work shall be substantially in the form used for the initial Statement of Work, and shall include at least the following:
names and contact information of relationship managers of each Party;
a detailed description of the Services to be provided thereunder;
a detailed description of the Software and other Work Product to be developed or otherwise provided under such Statement of Work;
an Implementation Plan, including all Milestones, the corresponding milestone dates, and the Parties’ respective responsibilities therefor;
Fees payable under such Statement of Work, the manner in which such Fees shall be calculated, the due dates for payment thereof, including any Milestones on which any such Fees are conditioned, and such other information as the parties deem necessary;
disclosure of all Approved Third-Party Materials and Approved Open Source Software in each case accompanied by such related documents as may be required by this Agreement with respect thereto; and
a detailed description of all Customer Resources required under such Statement of Work.
Statements of Work. Each Statement of Work shall only be effective if mutually agreed upon by both Parties and made subject to the terms and conditions of this Master Services Agreement. Each Statement of Work that is agreed upon by both Parties shall be incorporated by reference and made a part of this Master Services Agreement.
Amendments to Statements of Work. Customer may at any time request in writing (each, a “Change Request”) changes to any Statement of Work, including changes to the Services, Work Product, or Implementation Plan (each, a “Change”). Upon Customer’s submission of a Change Request, the Parties shall evaluate and implement all Changes in accordance with this Section 3.3.
As soon as reasonably practicable, Customer shall provide Service Provider with a written proposal for implementing the requested Change (“Change Proposal”).
As soon as reasonably practicable, Service Provider shall, by written notice to Customer, approve, reject, or propose modifications to such Change Proposal. If Service Provider proposes modifications, Customer shall modify and re-deliver the Change Proposal reflecting such modifications, or notify Service Provider of any disagreement therewith, in which event the Parties shall negotiate in good faith to resolve their disagreement. Upon Service Provider’s approval of the Change Proposal or the Parties’ agreement on all proposed modifications thereto, as the case may be, the Parties shall execute a written agreement to the Change Proposal (“Change Agreement”), which Change Agreement shall constitute an amendment to the respective Statement of Work.
If the Parties fail to enter into a Change Agreement within ten (10) business days following Service Provider’s response to a Change Proposal, Service Provider shall have the right, in its discretion, to:
require Customer to continue to negotiate a Change Agreement; or
notwithstanding anything to the contrary in this Master Services Agreement, terminate the respective Statement of Work in accordance with Section 12.4 of this Master Services Agreement.
No Change will be effective until the Parties have executed a Change Agreement with respect thereto. Except as Customer may request otherwise in its Change Request, Service Provider shall continue to perform its obligations in accordance with the respective Statement of Work pending negotiation and execution of a Change Agreement. Each Party shall be responsible for its own costs and expenses of preparing, evaluating, negotiating, and otherwise processing any Change Request, Change Proposal, and Change Agreement.
Customer Obligations.
Customer Obligations. Customer shall:
perform all obligations identified as “Customer Responsibilities” in the Statement(s) of Work;
provide the Customer Materials and such other resources as may be specified in Statement(s) of Work (collectively, “Customer Resources”);
provide Service Provider with such access to the Operating Environment as is necessary for Service Provider to perform its obligations on a timely basis as set forth in the Statement(s) of Work;
participate with suitably qualified and authorized personnel in all meetings scheduled in, or in accordance with this Master Services Agreement, the Statements of Work, or such other meetings as may be reasonably requested and scheduled by Service Provider; and
provide all consents, approvals, exception notices, and other communications specified in this Master Services Agreement, the Statement(s) of Work, or as otherwise reasonably requested by Service Provider.
Customer Delays. If, as a result of any failure by Customer to perform any of its obligations set forth in Section 4.1 of this Master Services Agreement on a timely basis, Service Provider is unable to timely meet all or any remaining Milestones under Statement(s) of Work, either at all or not without incurring additional costs, Service Provider may, in its sole discretion, (i) extend applicable Milestone dates for up to the length of Customer’s delay or (ii) increase the related Fees to recover any such additional costs, in accordance with the following:
Service Provider shall promptly notify Customer in writing proposing (i) a revised Implementation Plan reflecting new Milestone dates for each affected Milestone, which Milestone dates may be extended by no longer than the length of Customer’s delay or (ii) (a) for fixed-fee Services, the Fee increase for meeting the original Milestone date or (b) for Services based on hourly rates, the estimated overtime required for Service Provider to meet the original Milestone dates.
If Customer disputes Service Provider’s right to extend Milestone dates or increase Fees, or the extent of any proposed extension or increase, Customer shall promptly notify Service Provider and the Parties shall negotiate in good faith to resolve the dispute.
Delivery; Installation; Acceptance.
Testing by Service Provider. Before delivering and installing any Software Deliverable, Service Provider shall:
test the Software component of such Software Deliverable to confirm that it is fully operable and will function in conformity with this Master Services Agreement and the respective Statement of Work when properly installed in the Operating Environment;
scan such Software Deliverable using the most up-to-date scanning software and definitions to confirm it is free of Harmful Code; and
remedy any Non-Conformity or Harmful Code identified and retest and rescan the Software Deliverable.
Delivery. Service Provider shall deliver each Deliverable, and install all Software if explicitly stated in the related Statement of Work, on or prior to the Milestone date therefor in accordance with the delivery criteria set forth in this Master Services Agreement and the applicable the Statement of Work related to such Deliverable. Service Provider shall deliver each Software Deliverable, including the Source Code therefor.
Operating Environment Preparation. Customer shall be responsible for ensuring the relevant Operating Environment is set up and in working order to allow Service Provider to deliver and install, as applicable, each Software Deliverable on or prior to the Milestone date therefor. Service Provider shall provide Customer with a reasonable notice prior to delivery of each Software Deliverable, to provide Customer with sufficient time to prepare for Service Provider’s delivery and installation, as applicable, of the Software Deliverable.
Acceptance; Testing.
Upon delivery or, if Service Provider is responsible for installation, installation of each Software Deliverable, Acceptance Tests shall be conducted as set forth in this Section 5.4 to ensure the Software Deliverable conforms to the requirements of this Master Services Agreement and the respective Statement of Work.
All Acceptance Tests shall be conducted in the Operating Environment and as described in the Statement of Work for the Software Deliverable, for such period set forth in the relevant Statement of Work (the “Testing Period”). Acceptance Tests shall be conducted by the Party responsible therefor as set forth in the applicable Statement of Work.
Upon delivery, which shall include the installation of a Software Deliverable only if specifically stated in the relevant Statement of Work, of the Aggregate Software under any Statement of Work, additional Acceptance Tests shall be performed on the Aggregate Software as a whole to ensure full operability, integration, and compatibility among all elements of the Aggregate Software (“Integration Testing”). Integration Testing shall be subject to all procedural and other terms and conditions set forth in Section 5 of this Master Services Agreement.
Notices of Completion; Non-Conformities; Acceptance. Within five (5) business days following the completion of any Acceptance Tests, including any Integration Testing, the Party responsible for conducting the tests shall provide to the other Party written notice of the completion of the tests. Such notice shall include a report describing in reasonable detail the tests conducted and the results thereof, including any uncorrected Non-Conformity in the tested Software Deliverable(s). If such written notice is provided by (a) either Party and identifies any Non-Conformities, the Parties’ rights, remedies, and obligations will be as set forth in Section 5.6, (b) of this Master Services Agreement Customer and identifies no Non-Conformities, such notice shall constitute Customer’s Acceptance of such Software Deliverable or Aggregate Software, or (c) Service Provider and identifies no Non-Conformities, Customer shall have three (3) business days following the receipt of such written notice to notify Service Provider of any Non-Conformities, provided that if Customer has not notified Service Provider of one or more Non-Conformities with three (3) business days, Customer shall be deemed to have accepted such Software Deliverable and Aggregate Software.
Failure of Acceptance Tests. If Acceptance Tests identify any Non-Conformities, Service Provider shall remedy all such Non-Conformities and re-deliver the Software Deliverable(s), in accordance with the applicable requirements set forth in this Master Services Agreement and the applicable Statement of Work as promptly as commercially reasonable and at a cost as mutually agreed upon by the Parties.
Acceptance. Acceptance of each Software Deliverable (subject to Integration Testing, as applicable) and Aggregate Software shall occur on the date that is the earliest of the following (each, an “Acceptance”):
Customer’s delivery of a notice accepting such Software Deliverable pursuant to Section 5.5(b) or Section 5.5(c) of this Master Services Agreement;
solely if Customer is responsible for performing such Acceptance Tests or Integration Testing pursuant to Section 5.4(c) of this Master Services Agreement, upon the expiration of the Testing Period therefor if Customer has not notified Service Provider of one or more Non-Conformities prior thereto; or
solely if Service Provider is responsible for performing such Acceptance Tests or Integration Tests, the number of days specified in Section 5.5(c) of this Master Services Agreement after Customer receives Service Provider’s notice of completion, and Customer’s fails to respond pursuant to Section 5.5(c) herein.
Consulting; Maintenance; Support. With respect to all Software, Service Provider shall provide Customer with such consulting services, training, and Support Services as is set forth in the applicable Statement of Work. All Services provided under this Section 6 shall be provided at an additional charge to Customer, as mutually agreed upon by the Parties and at rates specified in the applicable Statement of Work, unless expressly provided otherwise in the respective Statement of Work.
Fees and Expenses.
Fees. In consideration of the Services to be performed under this Agreement, Customer shall pay to Service Provider the fees set forth in the applicable Statement of Work (“Fees”).
Reimbursable Expenses. Customer shall reimburse Service Provider for all reasonable expenses incurred in performing its Services and obligations hereunder within ten (10) business days of receipt by Customer of an invoice from Service Provider accompanied by receipts and supporting documentation. All Service Provider expenses not meeting the requirements of this Agreement or the Statement of Work to which it applies shall be the sole responsibility of Service Provider. Notwithstanding the foregoing or anything else contained in this Agreement, in no event shall license fees, royalties, or other amounts incurred by Service Provider to any Subcontractor or for any Third-Party Materials be a reimbursable expense hereunder, except as expressly stated otherwise in any Statement of Work for the Services or Work Product to be provided thereunder.
Invoices. Service Provider will issue invoices monthly in arrears, unless otherwise provided in an applicable Statement of Work, for all Fees and expenses incurred during the period covered by an invoice. If more than one Statement of Work is outstanding, Service Provider shall provide an aggregate invoice for all Fees and expenses being invoiced.
Payments. Customer shall pay all properly invoiced Fees and expenses within ten (10) days after the later of: (a) Customer’s receipt of the proper invoice therefor or (b) the due date for such amounts as set forth in the applicable Statement of Work. All payments will be in U.S. dollars or such cryptocurrencies as accepted by Service Provider, in its sole discretion.
No Setoff. All amounts due under this Agreement from Customer to Service Provider shall be paid in full without any setoff, counterclaim, deduction, or withholding (other than deduction or withholding required by law, such as tax withholding, or as otherwise expressly set out in this Agreement).
Interest on Late Payments.
If Customer fails to make any payment when due, then, without limiting Service Provider's remedies under this Agreement, Customer shall pay interest on overdue amounts from the due date until payment is made, whether before or after judgment.
Interest under Section 7.6(a) of this Master Services Agreement will be calculated on a daily basis and compounded monthly at a rate that is the lesser of: (a) 1.5% per month or (b) the highest rate permissible under applicable law.
Taxes. Customer shall be responsible for all value added, goods and services, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind (collectively, “Taxes”) imposed by any taxing authority on any amounts payable by Customer hereunder. If Service Provider pays any Taxes, such Taxes will be invoiced to and reimbursed by Customer, subject to the receipt of a valid tax invoice; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider's income, revenues, gross receipts, personnel, or real or personal property or other assets.
Intellectual Property.
Service Provider Ownership of Work Product. Service Provider is and will be the sole and exclusive owner of all right, title, and interest in and to all Work Product under this Agreement, including all Intellectual Property Rights therein, subject to the license granted pursuant to Section 9.1 of this Master Services Agreement.
Background Technology; Approved Third-Party Materials; Approved Open Source Software.
Service Provider is and will remain the sole and exclusive owner of all right, title, and interest in and to the Background Technology, including all Intellectual Property Rights therein, subject to the license granted pursuant to Section 9.2 of this Master Services Agreement.
Ownership of all Approved Third-Party Materials, and all Intellectual Property Rights therein, is and will remain with the respective owners thereof, subject to any express licenses or sublicenses granted to Customer pursuant to or in accordance with this Agreement.
Ownership of all Approved Open Source Software, and all Intellectual Property Rights therein, is and will remain with the respective owners thereof, subject to Customer’s rights under the applicable Open Source Software licenses.
Customer Materials. Customer and its licensors are and will remain the sole and exclusive owners of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein. Service Provider shall have no right or license to, and shall not, use any Customer Materials except solely during the Term of the Statement of Work(s) for which they are provided to the extent necessary to perform the Services and provide the Work Product to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer.
Licenses.
Work Product License. Service Provider hereby grants to Customer such rights and licenses to use all Intellectual Property Rights in the Work Product without incurring any fees or costs payable to Service Provider (other than the Fees and expenses set forth herein) and on a non-exclusive, non-transferable, nonsublicensable, fully paid-up, royalty-free, and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Work Product.
Background Technology License. Service Provider hereby grants to Customer such rights and licenses with respect to the Background Technology without incurring any fees or costs payable to Service Provider (other than the Fees and expenses set forth herein) and on a non-exclusive, non-transferable, nonsublicensable, fully paid-up, royalty-free, and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Work Product.
Customer Materials. Customer hereby grants to Service Provider the limited, royalty-free, non-exclusive right and license to Customer Materials solely as necessary to incorporate such Customer Materials into, or otherwise use such Customer Materials in connection with creating, the Work Product. The term of such license shall commence upon Customer’s delivery of the Customer Materials to Service Provider, and shall terminate upon the termination of the respective Statement of Work related to the Work Product to which the Customer Materials relate.
Approved Open Source Software. Any use of the Approved Open Source Software by the Customer will be governed by, and subject to, the terms and conditions of the applicable Open Source Software licenses.
Confidentiality.
Confidential Information and Exclusions. From time to time during the Term of this Master Services Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within 10 business days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 10; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.
Protection of Confidential Information. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to members of the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. For purposes of this Section 10, “Receiving Party's Group” means the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, Subcontractors, attorneys, accountants, and financial advisors.
Compelled Disclosures. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.
Representations and Warranties.
Service Provider represents and warrants to Customer that:
it is duly organized, validly existing, and in good as a limited liability company or other entity as represented herein under the laws of its jurisdiction of formation or incorporation;
it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
the acceptance of this Agreement by its representative has been duly authorized by all necessary corporate/organizational action of the Party and will constitute the legal, valid, and binding obligation; and
it shall provide the Services using personnel of required skill, experience, and qualifications and in a professional manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
Customer represents and warrants to Service Provider that:
it is duly organized, validly existing, and in good as a limited liability company or other entity as represented herein under the laws of its jurisdiction of formation or incorporation;
it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder;
the acceptance of this Agreement by its representative has been duly authorized by all necessary corporate/organizational action of the Party and will constitute the legal, valid, and binding obligation;
the Customer Materials and any instruction, information, designs, specifications, or other materials provided by Customer do not, and Service Provider's use of such materials in connection with the Services and the development of the Deliverables will not, infringe any Intellectual Property Right of any third party; and
Customer owns or otherwise has the right to provide Customer Materials to Service Provider for use in connection with the Services and the development of the Deliverables.
Term, Termination, and Survival.
Term. This Master Services Agreement shall commence as of the Effective Date and shall continue, unless sooner terminated as set out in this Master Services Agreement, until the completion of the Services under all Statements of Work (the “Term”).
Termination. Either Party, in its sole discretion, may terminate this Master Services Agreement or any Statement of Work, in whole or in part, at any time without cause, upon at least thirty (30) days' prior notice to the other Party. In the event of any termination under this Section 12.2, Customer shall be liable to Service Provider for payment of Fees for Services rendered and reimbursement for expenses incurred by Service Provider through the date of termination.
Either Party may terminate this Master Services Agreement or any Statement of Work, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
materially breaches this Master Services Agreement or any Statement of Work, as applicable, and such material breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within fifteen (15) business days after receipt of written notice of such material breach;
becomes insolvent or admits its inability to pay its debts generally as they become due;
becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within thirty (30) business days after filing;
is dissolved or liquidated or takes any corporate action for such purpose;
makes a general assignment for the benefit of creditors;
has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
undergoes a Change of Control.
Notwithstanding anything to the contrary in Section 12.3 of this Master Services Agreement, Service Provider may terminate this Master Services Agreement before the expiration of the Term immediately on written notice if Customer fails to pay any amount when due hereunder and such failure continues for five (5) business days after Customer's receipt of written notice of nonpayment. In the event of any termination under this Section 12.4, Customer shall be liable to Service Provider for payment of Fees for Services rendered and reimbursement for expenses incurred by Service Provider through the date of termination.
Effect of Expiration and Termination. Termination of any Statement of Work shall not effectuate a termination of this Master Services Agreement or any other Statement of Work then in effect.
Upon termination of any Statement of Work for any reason, with respect to such Statement of Work:
Service Provider shall (a) promptly deliver, subject to Section 8.1 and Section 9.1 of this Master Services Agreement, to Customer all Work Product generated by Service Provider under such Statement of Work (whether complete or incomplete) for which Customer has fully paid all outstanding Fees and expenses and (b) provide reasonable cooperation and assistance to Customer upon Customer’s written requested and at Customer’s expense in transitioning the Services to an alternate service provider;
Customer shall promptly pay all outstanding invoices for Fees and expenses related to such Statement of Work, and Service Provider may issue an invoice for any Services performed and expenses incurred but not yet invoiced related to such Statement of Work, which invoice shall be payable immediately upon Customer's receipt; and
all licenses granted to Service Provider in the Customer Materials with respect to such Statement of Work shall immediately and automatically also terminate, and Service Provider shall promptly return to Customer all Customer Materials initially requested to perform the Services under such Statements of Work, if any.
Upon expiration or termination of this Master Services Agreement for any reason:
Service Provider shall (a) promptly deliver, subject to Section 8.1 and Section 9.1 of this Master Services Agreement, to Customer all Work Product generated by Service Provider under this Agreement (whether complete or incomplete) for which Customer has fully paid all outstanding Fees and expenses and (b) provide reasonable cooperation and assistance to Customer upon Customer’s written requested and at Customer’s expense in transitioning the Services to an alternate service provider;
Customer shall promptly pay all outstanding invoices for Fees and expenses under this Agreement, and Service Provider may issue an invoice for any Services performed and expenses incurred but not yet invoiced related to Services performed under this Agreement, which invoice shall be payable immediately upon Customer's receipt; and
all licenses granted to Service Provider in the Customer Materials shall immediately and automatically also terminate, and Service Provider shall promptly return to Customer all Customer Materials, if any.
Survival. The rights and obligations of the Parties set forth in Section 12, Section 8, Section 9, Section 10, Section 13, Section 14, Section 16, Section 18, Section 26, Section 27 of this Master Services Agreement, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Independent Contractors.
The Parties shall be independent contractors pursuant to this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.
Any persons employed or engaged by either Party in connection with the performance of the Services shall be such Party's employees or contractors. Each Party assumes responsibility for the actions of its employees under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, providing unemployment and disability benefits, and the manner and means through which the work under this Agreement will be accomplished.
Indemnification.
Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, awarded against the Indemnified Party in a final non-appealable judgment (collectively, “Losses”), relating to or arising out of or resulting from any claim of a third party arising out of or occurring in connection with such Party's negligence, willful misconduct, or breach of this Agreement. The Indemnifying Party shall not enter into any settlement without the Indemnified Party's prior written consent.
Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to defend or indemnify any Indemnified Party against any claim for Losses under this Section 14, if such claim or corresponding Losses arise in whole or in part from the Indemnified Party's gross negligence, willful misconduct, or bad faith failure to comply with this Agreement.
Service Provider's indemnity obligation under Section 14.1 of this Master Services Agreement shall not apply to any claim if it arises in relation to:
Customer's use of the Deliverables, including use of the Deliverables in combination with any software, hardware, systems, equipment, or other materials not provided or authorized by Service Provider, if the alleged infringement would not have occurred but for such combination;
any modifications or changes to the Deliverables made by any person other than Service Provider; or
any materials or specifications provided by Customer.
This Section 14 sets forth the entire liability and obligation of the Indemnifying Party and the sole and exclusive remedy for the Indemnified Party for any Losses covered by the scope of the indemnity in this Section 14.
Compliance with Law. Each Party represents that it is in compliance with, and covenants that it will continue to comply throughout the Term with all applicable laws, regulations, and ordinances. Without limiting the generality of the foregoing sentence, Service Provider has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
Limitation of Liability.
IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
Entire Agreement and Conflict. This Master Services Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. In the event of any inconsistency between the statements made in the body of this Master Services Agreement, the related exhibits, schedules, attachments and appendices, including the Statement(s) of Work, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Master Services Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the Statement(s) of Work; (c) third, the exhibits, schedules, attachments and appendices to this Master Services Agreement as of the Effective Date; and (d) fourth, any other documents incorporated herein by reference.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party as set forth in the initial Statement of Work. Notices sent in accordance with this Section 18 shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent, if by facsimile or email, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours.
Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendments. No modification of this Agreement is effective unless it is in writing and signed by each Party.
Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set out in writing and signed by the Party waiving its rights. Except as otherwise set out in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver of such right, nor shall any single or partial exercise of any right, remedy, power, or privilege under this Agreement preclude any other or further exercise of such right or the exercise of any other right, remedy, power, or privilege.
Assignment. Unless explicitly stated in this Agreement otherwise, neither Party may assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section 22 shall be null and void. No assignment or delegation shall relieve the assigning Party of any of its obligations hereunder.
Export Regulation. Customer shall not itself, or permit any third parties to, export, re-export, or release, directly or indirectly, any Software to any country or jurisdiction to which the export, re-export or release of any Software (a) is prohibited by applicable law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
No Third-Party Beneficiaries. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Choice of Law. This Agreement and all disputes, claims, or other matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Virginia, without giving effect to its conflict of laws principles or rules to the extent they would require or permit the application of the laws of any jurisdiction other than those of the State of Virginia.
Dispute Resolution. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach of this Agreement, whether the claim arises in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be conducted in accordance with the Federal Arbitration Act (“FAA”) and the American Arbitration Association’s Commercial Arbitration Rules and Procedures that are then in effect. The Arbitration shall be conducted by one neutral arbitrator, unless either Party elects to have a panel of three arbitrators, in which case the Party making such election shall appoint one arbitrator, and the other Party shall appoint a second arbitrator, then the two arbitrators shall, within ten (10) business days after appointment of the second arbitrator, appoint the third arbitrator. Any arbitral award determination shall be final and binding upon the Parties. The arbitration shall take place in Washington D.C., and shall be conducted in English.
Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party's (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (h) other similar events beyond the reasonable control of the Impacted Party.
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