This Master Services Agreement (MSA) last updated 13 of August 2019 (“Agreement”) by Push ROI governs any statement of work which incorporates this MSA by reference. Client (hereinafter “Company”) Push ROI (hereinafter “Consultant”)
Company desires Consultant to perform certain services as outlined in the Scope of Work and governed by this Agreement. The Parties intending to be legally bound, hereby agree as follows:
Consultant and Company will develop and enter into one or more Statements of Work incorporating a description of the specific services requested by Company (each, and as modified by the Parties from time to time, a “SOW”). Each SOW will set forth, among other things, project scope, schedule, various project activities and tasks to be performed by the Parties, deliverables, acceptance procedures and criteria, and roles and responsibilities of the Parties. Each SOW shall specifically identify this Agreement and indicate that it is subject to the terms hereof. To the extent there are any conflicts or inconsistencies between this Agreement and any SOW, the provisions of this Agreement shall govern and control. Consultant will provide to Company those services described as its obligation in each SOW (collectively, the “Services”). Each SOW shall be annexed to this Agreement and for all purposes considered a valid addendum to this Agreement.
1.2 Deliverables; Acceptance of Deliverables.
Each SOW will describe, if applicable, the deliverables that Consultant is obligated to furnish to Company hereunder (collectively, the “Consultant Deliverables”) and the acceptance criteria for each of the Consultant Deliverables (the “Acceptance Criteria”). Company shall review, evaluate and/or test, as the case may be, each of the Consultant Deliverables within the applicable and reasonable time period set forth in a SOW (with respect to each Consultant Deliverable, the “Acceptance Period”) to determine whether or not such Consultant Deliverable satisfies the applicable Acceptance Criteria in all material respects. If any Consultant Deliverable fails to satisfy its Acceptance Criteria in any material respect, then Company will notify Consultant thereof in writing specifying the nonconformity (a “Rejection Notice”). Thereafter, Consultant shall use its diligent commercially reasonable efforts to modify a defective Consultant Deliverable to so conform and the Deliverable will be resubmitted for acceptance by Company, provided that upon resubmission, Company will limit its review, evaluation and/or test to determining whether the identified defect(s) have been corrected and to the effects which those modifications have on other portions of the Consultant Deliverable(s). If Consultant is unable to remedy each non-conforming portion of any Consultant Deliverable after a reasonable period of time for correction, then Company’s remedies and Consultant’s entire liability to Company as a result thereof will be subject to the limitations set forth in Article 8 hereof. If Company does not furnish a Rejection Notice to Consultant prior to the end of the Acceptance Period for any Consultant Deliverable, then Company will be deemed to have accepted such Consultant Deliverable. If requested by Consultant, Company will promptly sign and deliver to Consultant a mutually acceptable certificate evidencing such acceptance.
2.1 Project Fees and Reimbursable Items.
Company shall pay to Consultant the fees and other compensation set forth in each SOW. Company will also reimburse Consultant for all reasonable out-of-pocket travel, living and other ancillary expenses paid or incurred by Consultant while away from the place(s) of business of Consultant in connection with the Services and any other reimbursable items set forth in each SOW. Consultant will have no obligation to perform any Services when any amount required to be paid by Company remains due and unpaid beyond the date such amount is due. Any suspension of Services by Consultant as a result of Company’s failure to make payment as required will extend the due dates of Consultant Deliverables and other Services to the extent impacted by such suspension or delay.
2.2 Invoices; Payments.
Consultant will invoice Company for all fees, charges and reimbursable items payable to Consultant on a monthly basis as such payments are due. Consultant will provide original receipts expenses Consultant is seeking reimbursement for. Company will pay the invoiced amount in full within 30 business days of receipt of the invoice unless otherwise stated without deduction or setoff. Company will pay interest, at a rate of 6% per month or the maximum legal rate permitted, on the amount shown on any invoice that is paid later than thirty (30) days after the date of the invoice.
Company agrees to pay amounts equal to any Federal, State or Local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to any amounts payable by Company to Consultant hereunder, this Agreement or any Services, exclusive of taxes based on Consultant’s net income or net worth. Consultant will invoice Company for any taxes payable by Company that are required to be collected by Consultant pursuant to any applicable law, rule, regulation or other requirements of law. Consultant is an independent contractor, therefore, Company will not withhold or pay those amounts an employer is typically required to withhold or pay in connection with wages paid to an employee, such as, income tax, social security, Medicare, or disability.
III. CERTAIN OBLIGATIONS OF THE PARTIES
3.1 Obligations of Consultant.
Except for any and all software, information, data and other materials provided by Company or its agents to Consultant, Consultant warrants and represents that it shall not knowingly, or with negligence, include or authorize any Trojan Horse, back door, time bomb, drop dead device, worm, virus, or other malicious code of any kind that may disable, erase, display any unauthorized message or otherwise impair the Company’s software, with disregard of the possibility of or the intent to cause harm. Consultant will cause its personnel to comply with all of Company’s lawful standards and procedures when working on-site at Company’s facilities, including standards and procedures relating to security, provided that Consultant is given advanced notice of such standards and procedures.
4.1 Work Product and Company Intellectual Property.
The term “Work Product” means any inventions, documentation, designs, specifications, processes, works of authorship, data or modifications and enhancements to software or documentation that are made, conceived, developed or reduced to practice, alone or jointly with others, by Consultant personnel for Company in the course of performing Services, whether or not any such items are eligible for patent, copyright, trade secret or other legal protection, provided that Work Product shall not include Consultant Intellectual Property (as defined below). All Work Product, including all patent, copyright, trade secret, ideas, and other intellectual property rights related thereto, will be the sole and exclusive property of Company or its designee upon Company’s payment in full of amounts payable hereunder. The Parties intend that all Work Product shall be considered to be work-for-hire to the extent it qualifies as such under applicable law.
4.2 Residual Rights.
Notwithstanding the above, Company agrees that Consultant, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Services performed hereunder, subject to its obligations respecting Company’s Trade Secrets and Confidential Information pursuant to Article 5. Company understands and agrees that Consultant may perform similar services for third Parties using the same personnel that Consultant may utilize for rendering the Services for Company hereunder, subject to Consultant obligations respecting Company’s Confidential Information pursuant to Article 5.
4.3 Company Intellectual Property.
Company (or its licensor) will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to them including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by Consultant in the performance of Services and has been originated or developed by Company, its affiliates or by third Parties outside of the scope of the Services, or which has been purchased by or licensed to Company, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, “Company Intellectual Property”). Nothing contained in this Agreement or otherwise shall be construed to grant to Consultant any right, title, license or other interest in, to or under any Company Intellectual Property (whether by estoppel, implication or otherwise).
4.4 Consultant Intellectual Property.
Consultant (or its licensor) will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to them including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by Consultant in the performance of Services and has been originated or developed by Consultant, its affiliates or by third Parties outside of the scope of the Services, or which has been purchased by or licensed to Consultant, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, “Consultant Intellectual Property”). Nothing contained in this Agreement or otherwise shall be construed to grant to Company any right, title, license or other interest in, to or under any Consultant Intellectual Property (whether by estoppel, implication or otherwise).
- CONFIDENTIAL INFORMATION
5.1 Confidentiality Obligations.
The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been labeled as confidential at the time the information is made available by either party (the “disclosing party”) to the other (the “receiving party”) in connection with the efforts contemplated hereunder.
Company and Consultant shall each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any SOW.
Each party shall disclose the Confidential Information of the other only to those of its employees, independent contractors, permitted subcontractors (including their employees and independent contractors) having a need to know such Confidential Information, provided that such persons and entities have signed a non-disclosure agreement containing provisions no less restrictive that those contained
in this Article 5.2
The obligations of either party under this Article 5.1 will not apply to information or materials that the receiving party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (iv) is independently developed by the receiving party without reference to the Confidential Information of the other party, or (v) is required to be disclosed by law or order of a court of competent jurisdiction or regulatory authority, provided that the receiving party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing party, at the disclosing party’s cost and expense, in any effort made by the disclosing party to seek a protective order or other appropriate protection of its Confidential Information and any disclosure under this clause (v) is limited to the extent of the legal requirement.
- Intellectual Property Rights Indemnity.
Consultant and Company (in such case, the “Indemnifying Party”) each agree to indemnify, defend and hold harmless the other (in such case, the “Indemnified Party”) from and against any costs and damages awarded against the Indemnified Party by a court pursuant to a final judgment as a result of, and defend the Indemnified Party against, any claim of infringement of any patent , copyright, trademark, or misappropriation of any trade secret related to a Consultant Deliverable (in the case of indemnification by Consultant) or Consultant’s possession, use or modification of any software, documentation, data or other property provided by the Company (in the case of indemnification by Company).
7.1 Limited Warranty.
With respect to any Consultant Deliverable or other Services, excluding any Company provided or Company directed third party materials, Consultant warrants the following for a period of thirty (30) days following final acceptance by Company of the particular Consultant Deliverable or the performance of such other Services (the “Warranty Period”):
- the applicable Services rendered hereunder will be performed by qualified personnel;
- the applicable Services performed will substantially conform to any applicable requirements set forth in the SOW;
- the applicable Consultant Deliverable or Services will materially conform to the specifications, if any, and/or Acceptance Criteria, if any, for those specific corresponding Consultant Deliverables or Services.
Except as expressly provided in Article 7.1, Consultant does not make any representation or warranty of any kind, whether such warranty be expressed or implied, including any warranty of merchantability or fitness for a particular purpose or any warranty form course of dealing or usage of trade.
7.3 Responsibility of Company.
In the event that Company asserts any claim for warranty services hereunder and such claim relates to any matter that is determined not to be Consultant’s responsibility hereunder (including any problem with Company’s computer hardware or the Software that was not caused by any Services performed by Consultant), Company will be responsible to pay Consultant for all evaluation, correction or other services performed by Consultant relating to such claim on a time and materials basis at Consultant’s then lowest billing rates.
VIII. LIMITATION OF LIABILITY AND REMEDIES
8.1 Exclusion of Damages.
Except for a breach of any warranty or representation in no event shall either party be liable to the other party or any other person or entity for any special, exemplary, indirect, incidental, consequential or punitive damages of any kind or nature whatsoever including, without limitation, lost revenues, profits, savings or business, other than amounts due and payable to either party or loss of records or data, whether in an action based on contract, warranty, strict liability, tort (including, without limitation, general negligence, but excluding gross negligence or willful misconduct) or otherwise, even if such party has been informed in advance of the possibility of such damages or such damages could have been reasonably foreseen by such party.
8.2 Total Liability.
Except for any liability of Consultant under Articles 6 or 10.4 hereof, or a breach of any warranty or representation or gross negligence or willful misconduct, in no event shall the liability of either party arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the total fees paid by Company to Consultant for the particular Services or Consultant Deliverable with respect to which such liability relates (or in the case of any liability not related to a particular portion of the Services, the total fees paid by Company to Consultant under the applicable SOW), whether such liability is based on an action in contract, warranty, strict liability or tort (including, without limitation, general negligence, but excluding gross negligence or gross negligence or willful misconduct) or otherwise.
The Parties agree that this Agreement is solely for the benefit of the Parties hereto and no provision of this Agreement shall be deemed to confer upon any other person or entity any remedy, claim, liability, reimbursement, cause of action or other right whatsoever. Consultant’s entire liability under this Agreement or arising from the Services shall be subject to the limitations contained in this Article 8. The Parties have agreed that the limitations specified in this Article 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose and represents an allocation of risk between the Parties and is an essential and material part of this Agreement.
9.1 No Employee Relationship.
Consultant’s resources are not and shall not be deemed to be employees of Company. Consultant shall be solely responsible for the payment of all compensation to its resources, including provisions for associated taxes, worker’s compensation and any similar taxes associated with resources of Consultant’s personnel. Consultant’s resources shall not be entitled to any benefits paid or made available by Company to its employees.
9.2 Non-Solicitation Obligations.
During the term of each SOW and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, solicit for employment or employ, whether as an employee or independent contractor, [or accept services provided by,] any employee, officer or independent contractor of the other party who performed any work in connection with or related to the Services under the applicable SOW.
9.3 Right-to-Hire Clause.
If in the event Company wants to offer full-time employment to any Consultant’s resource during the term of a SOW or during a period of twelve (12) months thereafter, Company shall make such request to Consultant in writing and will include agreement to compensate Consultant no less than 30% of 1st year compensation package (including base and target bonus). Consultant will then have a period of thirty (30) days to respond with acceptance/decline such offer.
- TERM AND TERMINATION
This Agreement may be terminated by either party (the “non-defaulting party”) if any of the following events occur by or with respect to the other party (the “defaulting party”): (i) the defaulting party commits a material breach of any of its obligations hereunder and fails to cure such breach within the time period set forth in Article 10.3 hereof or fails to reach an agreement with the non-defaulting party regarding the cure thereof; or (ii) any insolvency of the defaulting party, any filing of a petition in bankruptcy by or against the defaulting party, any appointment of a receiver for the defaulting party, or any assignment for the benefit of the defaulting party’s creditors.
10.2 Remedies; Grace Period.
In the event either party commits a material breach of any obligations hereunder, the non-defaulting party will so notify the defaulting party in writing (and, in such notice, indicate the nature of the breach and the assertion of the non-defaulting party’s right to terminate). The defaulting party will have thirty (30) days (except ten (10) days in the case of payment of monies due) following receipt of such notice to cure such breach or, if such breach reasonably cannot be cured in thirty (30) days, such longer period of time as may be reasonably necessary to effect such cure if the defaulting party furnishes to the non-defaulting party within such thirty (30) day period a plan demonstrating that it is capable of curing the breach and thereafter diligently proceeds to prosecute such plan to completion. If such breach remains uncured after such cure period, the non-defaulting party may terminate this Agreement pursuant to Article 10.2 effective immediately by sending further notice to such effect.
10.3 Termination by Consultant.
In the event Consultant terminates this Agreement pursuant to this Article 10, Consultant will be entitled to recover payment for all Services rendered through the date of termination (including for work-in-progress), those costs reasonably incurred in anticipation of performance of the Services to the extent they cannot reasonably be eliminated, any other reasonable termination costs Consultant incurs in connection with canceling any secondary contracts it undertook in anticipation of performance of the Services and any other actual damages suffered by Consultant.
10.4 Termination by Company.
In the event Company terminates this Agreement pursuant to this Article 10, Company may retain all Consultant Deliverables delivered to or for the benefit of Company hereunder through the date of termination, whether in electronic or other form, upon payment by Company for all accepted Consultant Deliverables and any other Services rendered through the date of termination. In addition, Company may recover its actual damages, subject to the limitations set forth in Article 8 hereof.
Those sections of this Agreement, that should logically survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement.
11.1 Excusable Delays and Failures.
Each party will be excused from delays in performing, or from its failure to perform, hereunder to the extent that such delays or failures result from causes beyond such party’s reasonable control. Company further acknowledges that such delays or failures shall be subject to change management procedures and may result in additional charges for the Services.
When used in this Agreement, the singular will include the plural, and vice versa. “Including,” “includes” and “include” mean, respectively, “including, without limitation,” “includes, without limitation” and “include, without limitation”.
11.3 Rights and Remedies.
Except as otherwise provided herein, the rights and remedies of the Parties provided in this Agreement are cumulative and not exclusive of any rights or remedies provided under this Agreement, by law, in equity or otherwise.
A waiver by any Party of any provision of this agreement in any instance shall not be deemed to waive it for the future. A Party’s failure to insist on strict compliance with any of the terms of this agreement on one or more occasions is not a waiver of any rights or obligations under this Agreement.
Any notice required, permitted to be given, or otherwise given hereunder may be effectively given by letter delivered either by personal delivery, registered mail certified return receipt requested, postage prepaid, or delivered by overnight delivery service, or by facsimile machine upon receipt from the sender of a confirmation of receipt, or by other electronic means so long as the recipient has acknowledged receipt (for purposes of this section an automatically generated receipt confirmation does not qualify as acknowledgment of receipt).
Except for assignment to a collection agency or attorneys for the purpose of collecting past-due monies owed hereunder, no Party (“Assignor”) may assign or otherwise transfer its rights or obligations under this Agreement, to a third party (“Assignee”), unless it is assigning all (but not less than all) of its rights and obligations hereunder as a result and subject to the prior written consent of the other Party (“Non-Assigning Party”), which consent shall not be unreasonably withheld or delayed.
If the scope of any provision of this Agreement is too broad to permit enforcement to its full extent, then such provision shall be enforced to the maximum extent permitted by law, and the scope may be judicially modified to the extent necessary to conform to law.
Each of the provisions of this Agreement (and each part of each such provision) is severable from every other provision hereof (and every other part thereof). In the event that any provision (or part thereof) contained in this Agreement or the application thereof to any circumstance shall be invalid, illegal or unenforceable, in whole or in part, and to any extent the validity, legality or enforceability of such provision (or such part thereof) in any other jurisdiction and of the remaining provisions contained in this Agreement (or the remaining parts of such provision, as the case may be) shall not in any way be affected or impaired thereby.
11.9 Governing Law.
The venue for any action or claim at law or in equity hereunder shall be exclusively in and with a court having jurisdiction over Dallas County, Texas , if disputes are to be resolved in Court, if at all, as set out elsewhere herein, or if arbitration or mediation is to occur, if at all, as set out elsewhere herein, that shall be in the same location, and the Parties irrevocably consent to the exclusive personal jurisdiction of such federal or state courts or arbitrators.
11.10 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. The Parties shall not be bound or charged with any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings not specifically set forth in this Agreement.
No modification, revision, supplementation, abrogation, termination, extension, waiver, or amendment to or of this Agreement, or any other agreement between the Parties, (including any attachments or exhibits) or any of its provisions, may be made, and any attempts shall not be binding, unless agreed to by duly authorized representatives of the Parties, in writing.
11.12 Dispute Resolution.
The Parties shall endeavour to resolve any differences of opinion which may arise between them with respect to the provisions of this Agreement by negotiation between themselves personally or with the assistance of their attorneys and unless in the opinion of any party, acting reasonably, the matter in dispute is of such a significant nature to warrant it being addressed otherwise, no party shall commence any public proceedings until the negotiations have failed to produce a resolution. In furtherance of the provisions of this paragraph, all Parties hereby agree to make themselves available on short notice and to negotiate promptly and in good faith, any matter any party may wish to negotiate. If there is no resolution then the Parties agree that any dispute, claim, or action hereunder shall be resolved exclusively in and with a court of law or equity having jurisdiction over the Parties and subject matter.
If there is any controversy regarding this agreement or the terms of this Agreement, this Agreement, will be deemed to have been drafted by all parties herein and will not be strictly construed as against any party. The parties have been made aware of their right and opportunity to consult with independent legal counsel and have either done so, or knowingly waive the right to do so. Further, the parties acknowledge that they have engaged in negotiations to reach this Agreement.
This Agreement, may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one and the same agreement, including the judicial proof of any of the terms hereof. A photocopy, fax copy, or electronic image copy, which depicts the inclusion of one or more signatures by pen on paper, shall be deemed an original.
11.15 Attorneys’ Fees.
In the event of litigation or arbitration relating to the subject matter of this Agreement, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
Each person signing warrants and represents that he or she has full authority to enter into this Agreement, and that all representations and warranties in this Agreement, are true and correct.