STANDARD TERMS AND CONDITIONS OF SALE
Services Provided. Service Provider shall provide Client certain services ("Services") specified in one or more properly executed SOWs to be incorporated herein and made a part hereof. Each SOW shall incorporate the terms and provisions of this MSA. To the extent a SOW provides additional or conflicting terms to this MSA, the terms of the SOW shall prevail for that provision and that SOW only. Each party shall designate a principal point of contact between the parties for all matters relating to Services provided under a particular SOW. A party may designate a new point of contact by written notice to the other party.
FEES, EXPENSES & PAYMENT
- Fees, Rates & Terms. For all Services performed under a SOW or other request for Services that references the Agreement, Client shall pay Service Provider according to the fees, rates and payment terms set forth in each SOW. Unless Client provides Service Provider with a valid tax exemption or direct pay certificate upon execution of this Agreement, Client is responsible for all taxes (including excise taxes), duties, and customs fees which may be assessed on the amounts paid for Services performed hereunder, excluding taxes based on Service Provider's income or payroll.
- Invoices and Payments. For all Services, fees, expenses, amounts owed and reimbursements described in the Agreement, including any SOW, unless otherwise provided for in a SOW, Service Provider shall prepare and submit invoices to Client which shall include reasonably detailed descriptions of the Services performed. Unless otherwise specified in a SOW, Client will pay Service Provider’s invoices on the basis of net 30 days of receipt for invoices related to Services and net 15 days of receipt for invoices related to reimbursable expenses which are authorized under a SOW or by Client. In the event payment is not made within such period, Service Provider, at its option, may charge interest on all sums owing after such due date at a rate equal to the lesser of 1.5% per month or the highest lawful rate. If Client in good faith disputes any portion of any invoice, Client shall submit full payment to Service Provider of the undisputed portion of the invoice and written documentation identifying and supporting the dispute. Each party will maintain complete and accurate records relating to any amounts invoiced or paid in connection with the Services provided under this Agreement.
TERM AND TERMINATION
- Term. This Agreement will commence on the Effective Date and will remain in full force and effect until terminated as provided in this Section 3.
- Termination. Unless otherwise provided herein or in a SOW, either party may terminate this MSA or any SOW for any reason or for no reason by giving the other party thirty (30) day’s advance written notice of termination. If this MSA or a SOW is terminated by the Client due to no fault of Service Provider, Client shall pay Service Provider for all work performed and for all expenses incurred prior to the effective date of termination. If this MSA or a SOW is terminated by Service Provider due to no fault of Client, then Service Provider shall refund any pre-paid amounts for which Services have not been provided.
- Effect of Termination. Upon termination of this MSA, or any SOW attached hereto, or any Services provided hereunder for any reason: (i) all materials, including without limitation, Confidential Information, provided by either party to the other hereunder will be promptly returned after the effective date of termination, and (ii) all earned and unpaid fees and expenses will become immediately due and payable. Each party's termination rights set forth in this Agreement are cumulative and are in addition to all other rights and remedies available to the parties.
REPRESENTATIONS, WARRANTIES, INDEMNIFICATION, LIMITS ON LIABILITY
- Representations and Warranties. Each party warrants that it has the right and power to enter into this Agreement and it has been signed by an authorized representative of such party. Service Provider warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards. To the extent Services provided by Service Provider are advisory, no specific result is assured or guaranteed. Client acknowledges that Service Provider has made no representations or warranties of any kind, express or implied (including warranties of merchantability or fitness for a particular purpose, which are hereby specifically disclaimed), with respect to the Services provided hereunder except as provided herein. If the Work Product (defined in Section 5 below) or Services contain workflows, triggers, integrations, calculations, formulas or mathematical outcomes (“Calculated Results”), each party will do its part to reasonably ensure the accuracy of the Calculated Results. Client is responsible for underlying data and data inputs and shall be ultimately responsible for confirming any Calculated Results produced by Service Provider that comprise Work Product or Services. If Client identifies any defects in Work Product or Services, Client shall document them in writing for Service Provider, which shall promptly review and resolve such discrepancies.
- Indemnification. Subject to the limitations set forth in this paragraph, Service Provider and Client shall each protect, defend, indemnify and hold the other and the other's successors, directors, officers, employees or representatives harmless from any loss, liability, damage, cost or expense (including reasonable attorneys' fees) caused by, arising out of, or resulting from any intentional or negligent act or omission on the part of the indemnifying party, its officers, directors, employees or representatives in the performance of, or the failure to perform, this Agreement.
- Limitation on Liability. Except for the Indemnification provided in this Section, Service Provider’s maximum liability for any action arising under this Agreement, regardless of the form of action and whether in tort or contract, shall be limited to the amount of fees paid by Client for the Services from which the claim arose. In no event shall either party shall be liable to the other for any special, incidental, consequential, punitive or indirect damages, including, without limitation, lost profits or business expectancy damage, computer downtime or any other unauthorized use, whether in contract or in tort, or otherwise, whether or not such party had notice of the possibility of such damages occurring, arising out of such party's performance or alleged nonperformance of this Agreement.
- "Confidential Information" shall mean any confidential and proprietary business and/or technical information or any information that may have commercial or other value in the disclosing party’s business and is confidential or proprietary in nature, including but not limited to: (i) trade secrets, inventions, pending patents and copyrights, (ii) concepts, know-how, ideas, techniques, discoveries, and improvements, (iii) algorithms, formulas, specifications, research, development, data, databases, software design and architecture, computer programs, source, object and other computer code, (iv) technical or other representations, documentation, diagrams, and flow charts, (v) other technical, business, financial, customer, supplier and development plans or information, schedules, forecasts, strategies, marketing plans, techniques, and other similar information and (vi) names and contact information of employees, clients, partners and prospects. Confidential Information may be written or verbally communicated information which: (a) if in tangible form, has been marked trade secret, confidential, proprietary or with words of similar import; (b) if oral or other intangible form, which is stated to be confidential at the time of disclosure and a description of which is delivered to the receiving party within thirty (30) days of disclosure. Confidential information may include information that is confidential or proprietary to the disclosing party’s clients, partners or affiliates for which the disclosing party is authorized to disclose solely for the purposes of providing Services to such clients, partners or affiliates.
Client shall identify in writing at the time of disclosure all Confidential Information which includes or constitutes information which is covered by federal regulation or law (“Protected Information”) and shall communicate the delivery of such Protected Information to Service Provider’s Protected Information administrator at [email protected] and such notice shall include the nature and type of information disclosed, the individual(s) to whom the information was disclosed and the nature or method of conveyance. Client shall only provide Service Provider with Protected Information to the extent necessary for Service Provider to complete the Services under a Statement of Work.
- Information Not Confidential. Confidential Information loses that status if: (a) the information is or becomes generally available to the public other than as a result of a disclosure by the receiving party or its representative in breach of this Agreement; (b) is or becomes available to the receiving party or its representative on a non-confidential basis from a source other than the disclosing party or its representatives, that is not bound by a confidentiality or similar agreement prohibiting the disclosure thereof; (c) is within the receiving party’s possession prior to being furnished, provided that the receiving party can establish with appropriate documentation that the same or substantially similar data or information was already in the receiving party’s possession at the time of disclosure by the disclosing party; or (d) has been independently developed by the receiving party, provided the receiving party can establish with appropriate documentation that the same or substantially similar data or information was developed by the receiving party without reference to, use of, or reliance upon the data or information disclosed by the disclosing party.
- Use of Confidential Information. Each party agrees to hold the other party’s Confidential Information in confidence and, other than for the purposes of furthering the Services, shall not improperly use or disclose the Confidential Information of the disclosing party to any third party, and it is understood that said Confidential Information shall remain the sole property of disclosing party. Each party acknowledges that a breach of the provisions of this Section 5 shall result in; injury to the disclosing party, or its customer, for which monetary damages can not adequately compensate. Each party agrees that, in addition to any other remedy available to it, the disclosing party shall be entitled to seek both temporary and permanent injunctive relief to the extent permitted by law for a breach or threatened breach of this Section 5.
- Work for Hire. Except as otherwise explicitly specified in a SOW with respect to particular deliverables thereunder, all inventions, discoveries, computer programs, data, technology, designs, innovations, applications, plans, modifications and improvements (whether or not patentable and whether or not copyrightable) which are made, conceived, reduced to practice, created, written, designed, discovered or developed by Service Provider, solely or jointly with others during the course of providing the Services for a project, shall be considered to be work-for-hire, performed for the benefit of Client and shall be the sole property of Client (“Work Product”) upon receipt of payment by Service Provider for the Services related to the Work Product; provided however, Work Product resulting from a project shall not include any copyrights, trademarks, patents, trade secrets, moral rights and other proprietary rights, with respect to the United States, and any other country, owned by Service Provider, or its contractors or agents, prior to the commencement of such project (“Service Provider’s IP Rights”). Service Provider hereby assigns, and shall, upon receipt of payment by Service Provider for the Services related to the Work Product, cause its personnel to assign, to Client all such Work Product and any and all related patents, copyrights, trademarks, trade names and any other intellectual property rights in the United States and elsewhere. Service Provider further expressly disclaims any and all interest they may have in the Work Product. Service Provider hereby grants to Client a fully paid, non-exclusive, royalty-free, worldwide license to use for its own purpose the Service Provider’s IP Rights contained in a Work Product. Upon request of Client, Service Provider shall take such further actions, and shall cause its personnel to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effort to such assignment. Client will have no rights to assign or sell the license granted herein to others.
- Client acknowledges that Service Provider uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (Service Provider proprietary items) that are proprietary to Service Provider. It is agreed that these Service Provider proprietary items shall remain the sole and exclusive property of Service Provider. Service Provider grants Client a perpetual, non-exclusive, paid-up license to use Service Provider proprietary items subject to the following:
- Client may use Service Provider’s proprietary items solely in connection with the products purchased hereunder, for the purpose for which those products were originally purchased.
- Client may not transfer, sell, or otherwise dispose of any Service Provider’s proprietary items without the prior written consent of the Service Provider.
The Deliverables, if any, shall be deemed accepted by Client upon completion of the following acceptance test:
- Immediately upon receipt of said Deliverables, Client shall promptly perform testing of the Deliverables to confirm that the Deliverables perform in accordance with the documentation or other standards applicable thereto as set forth in the Statement of Work.
- Client shall either promptly provide Service Provider with written acceptance of the Deliverables, or deliver to Service Provider a detailed written statement of nonconformities to be corrected prior to Client’s acceptance of the Deliverables. Unless otherwise agreed to in writing by the parties, Service Provider will redeliver corrected Deliverables to Client within a reasonable amount of time after receipt of such statement of nonconformities.
- Following redelivery of corrected Deliverables, a new acceptance test shall be immediately commenced by Client. Any such written statement of nonconformities shall provide sufficient detail to enable Service Provider to remedy the failure to conform to the Completion Criteria. If Client fails to provide a written acceptance or a written statement of nonconformities within five (5) days of initial receipt of said Deliverables or such other mutually acceptable period as defined in the applicable Statement of Work, or within five (5) days of re-delivery of said corrected Deliverables or such other mutually acceptable period, the Deliverables shall be deemed immediately accepted by Client.
- DELAY OR SUSPENSION OF WORK
If Client’s acts or failure to act causes Service Provider to delay or suspend performance of Services, Service Provider and Client will mutually agree to one of the following remedies:
- Service Provider will use reasonable efforts to continue performance as practicable under the circumstances and Client will continue to make all scheduled payments; or
- Service Provider will re-assign personnel to extend Service Provider’s work schedule without liability, and Client will pay all additional costs, if any.
- Notwithstanding the above, Service Provider shall have the right to invoice Client for any work performed to date of suspension.
- DISPUTE RESOLUTION
Any controversy or claim, whether based on contract, tort, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement ("Dispute"), shall be resolved solely in accordance with the terms of this Section 6. Either party reserves the right to seek an injunction or other equitable relief in court to prevent or stop a breach of this Agreement or a violation of rights either party has under law. In the event of Dispute, Service Provider and Client hereby agree that (i) they will first attempt, in good faith, to resolve such Dispute through direct negotiation within thirty (30) days of the date either party notifies the other party of the existence of a Dispute; (ii) in the event a Dispute under this Agreement cannot be resolved through direct negotiation, each party hereby agrees and covenants that both shall submit to mediation under a mutually agreeable mediator in Colorado. In the event of mediation, each party shall bear its own costs of such mediation, including its own attorney’s fees and its pro rata share of mediator fees. The parties and their representatives shall hold the existence, content and result of the mediation in confidence. The mediator shall not consider punitive damages. There shall be no discovery conducted prior to, or during the mediation process. Disputes for non-payment of Services shall not be required to be submitted to mediation. If following any requirement for mediation above, any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum as and for attorney's fees, costs of collection, and costs of any litigation, which fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose.
- Assignments. Neither party will assign this Agreement, in whole or in part, without the other party's prior written consent; provided, however, that either party may assign this Agreement and any applicable SOW to any entity that is wholly-owned, directly or indirectly, by such party or to any entity which acquires all or substantially all of the business or assets of such party, without the prior written consent of the other party. Any attempted assignment of this Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of both parties, their successors and permitted assigns.
- Notices. Any notices provided for in this Agreement shall be given in writing and transmitted by personal delivery or prepaid first class registered or certified mail sent to the address provided in the signature block below or to such other address as either party may from time to time specify in writing.
- Independent Contractor. The relationship of Service Provider to Client shall be at all times that of independent contractor. Neither party has the authority to bind the other party nor to incur any obligation on behalf of the other. Service Provider and Client shall be responsible for and shall pay promptly all federal, state, and municipal taxes, charges and assessments with respect to its income and employees or agents, including but not limited to, social security, unemployment, federal and state withholding and other taxes. Neither party may sign contracts for, or handle cash or negotiable instruments of the other party without such party’s written consent.
- SUBCONTRACTING. Service Provider may, at its option, subcontract work under a Statement of Work but Service Provider’s use of subcontractors shall not affect its responsibilities under the applicable Statement of Work. Moreover, Service Provider shall be fully responsible for work done by its subcontractors within the scope of the applicable Statement of Work as it is for work done by its own employees. Service Provider shall have written agreement(s) with its subcontractors that contain, at a minimum, clauses that are the same as or comparable to the sections of this Agreement regarding ownership rights and confidentiality of Client’s materials.
- Force Majeure. Except for Client’s obligation to pay Service Provider, should performance of any obligation under this Agreement become illegal or impracticable by reason of fire, flood, earthquake, storm, war, civil unrest, act of God, labor dispute, terrorist threats or acts, epidemic, pandemic, regional or national emergency, any order, requisition or necessity of a governmental authority, or any other cause whether of the kind enumerated herein or otherwise and which is beyond the reasonable control of the party whose performance is affected, then the performance of any such obligation is suspended during the period of, and only to the extent of, such prevention or hindrance, provided the affected party provides reasonable notice of the event of force majeure and exercises reasonable diligence to remove the cause of force majeure.
- Business Days. Whenever the terms of this Agreement call for the performance of a specific act on a specified date, which date falls on a Saturday, Sunday or legal U.S. holiday, the date for the performance of such act shall be postponed to the next succeeding regular business day following such Saturday, Sunday or legal U.S. holiday.
- Publicity. Service Provider may use Client’s name or mark and identify Client as a client of Service Provider, on Service Provider’s website and/or marketing materials. Service Provider may issue a press release, containing Client’s name, related to any award under this Agreement. Neither party will use the other party’s name or marks, refer to or identify the other party for any other reason, except as established in this section, without such other party’s written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.
- General. THIS AGREEMENT SHALL BE GOVERNED BY, ENFORCED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance here from. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as part of this Agreement, a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
- Entire Agreement/Amendment. This Agreement, inclusive of this MSA, any executed SOW and any exhibits attached hereto contain the entire understanding between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous negotiations and agreements, oral or written, between them regarding the subject matter hereof and constitute the entire agreement of whatsoever kind or nature existing between the parties respecting the subject matter hereof. As between the parties, no oral statements or prior written material not specifically incorporated herein shall be of any force and effect; the parties specifically acknowledge that in entering into and executing this Agreement, the parties relied solely upon the representations and agreements contained in this Agreement and no others. All prior or contemporaneous representations or agreements, whether written or verbal, not expressly incorporated herein are superseded and no changes in or additions to this Agreement shall be recognized unless and until made in writing by all parties. No purchase order or other document that purports to modify or supplement the printed text of the Agreement shall add to or vary the terms of the Agreement. All such proposed variations, edits, or additions to the Agreement are objected to unless otherwise mutually agreed to in writing.
- Counterpart Execution. This Agreement may be executed in multiple counterparts, including by facsimile or other electronic transmission, and each full reproduction, including reproductions by photocopy or scan shall be deemed to be an original and all of which together shall constitute but one and the same instrument.
Interpretation. Headings used in this Agreement are for convenience only and will not be deemed to be operative text. Terms of gender will be deemed interchangeable as will singular and plural terms, in each case unless the context otherwise requires. All monetary amounts used herein or in any SOW will be deemed to refer to current U.S. dollars, unless otherwise specifically documented.