Master Services Agreement

THIS MASTER SERVICES AGREEMENT (this “Agreement”) is entered into and effective as of the date executed below on the signature page hereto (the “Effective Date”), by and between “Company Name Here” a “corporation/LLC/LP/Partnership” (“CLIENT”) and AUXANO TECHNOLOGY CONSULTANTS, a Texas LLC (“PROVIDER”). CLIENT and PROVIDER may each be referred to herein individually as a “Party” and collectively as the “Parties.”

 

WHEREAS, CLIENT hereby desires to hire and engage PROVIDER to design and develop technology solutions and associated deliverables, as mutually agreed upon in separate and independent “Statements of Work”.  All Statements of Work are carried out under the conditions documented in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants of the Parties set herein, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:          

 

  1. Services and Payments

 

  • Services. PROVIDER agrees to provide to CLIENT the services set forth in this Agreement, and as more fully described in one or more separate and independent statements of work (each a “SOW”) to be agreed upon by CLIENT and PROVIDER (collectively, the “Services”) and to deliver to CLIENT the work product resulting from the Services (the “Deliverables”). Services will be related to the design and development of technology solutions and associated deliverables, including where applicable based upon and integrated with the CLIENT technology vision. Upon completion of the Services associated with any SOW, PROVIDER will deliver to CLIENT all development and/or training documentation for the relevant Deliverables.

 

  • Statements of Work. All requests for Services will be submitted to PROVIDER through a SOW, in form and substance that has been mutually agreed upon by the Parties, a form of which is attached hereto as Exhibit “A” and made a part hereof, each to be attached to and made a part of this Agreement, and each of which shall also be executed by both CLIENT and PROVIDER. A SOW shall only be binding if it is duly executed by both parties.  In the event of a conflict between the terms of this Agreement and a SOW, the terms of the applicable SOW will control.  Upon the full execution of a SOW and the payment of the retainer, PROVIDER may commence Services thereunder.  The timelines and milestones in the respective SOW shall commence upon CLIENT’s payment of the “SOW Retainer” and receipt of which by PROVIDER (herein so called and defined in the respective SOW).  The Retainer shall typically be equal to fifty percent (50%) of the total Fees for the respective SOW. Each timeline, milestone and/or respective due dates, target dates and/or other dates set forth in the SOW shall be extended day by day, based upon any delay of CLIENT in paying the SOW Retainer. 

 

  • Change Orders. From time to time, CLIENT may request changes to an executed SOW.  In such case CLIENT will submit their request, PROVIDER will review and provide CLIENT an estimate of the time and materials required to complete the Change Order.  The Change Order may contain a new estimated Completion Date for the SOW.  A form of this Change Order is attached to this document as “Exhibit B”.  CLIENT will have the opportunity to review the time and materials, and if acceptable, execute the Change Order.  Any executed Change Orders will be integrated into this MSA and the SOW in question.

 

  • Delivery, Testing, and Acceptance. Upon completion of any Deliverable, PROVIDER shall initially deliver the Deliverable to CLIENT, as designated by CLIENT, and notify CLIENT of such delivery in writing (which may occur by email). CLIENT shall be responsible for testing and reviewing the Deliverable(s) and notifying PROVIDER of any concerns or failures as soon as practicable after delivery. PROVIDER agrees to make any and all modifications to the Deliverable in order that the Deliverable satisfies the requirements and performance specifications set forth in the SOW, and PROVIDER will endeavor to complete such modifications within thirty (30) days from receipt of written notice of any and all such deficiencies (or if it takes additional time to provide such corrective measures, then PROVIDER will act with all urgency and promptness), such corrective/modification work to be provided at PROVIDER’s sole cost and expense (and not as an expense or fee in addition to the Fees already agreed upon in the respective SOW). A Deliverable will be deemed “Accepted” upon the earlier of (a) the parties’ mutual written confirmation of acceptance of the Deliverable, (b) PROVIDER’s provision of the Deliverable and the passage of thirty (30) days without CLIENT providing written notice that the Deliverable fails to materially perform in accordance with the SOW, (c) the Deliverable materially performing in accordance with the SOW. 

 

  • Bug and Revisions. If CLIENT discovers that there are bugs associated with any Deliverable at any time within sixty (60) days following the Deliverable being Accepted, CLIENT shall notify PROVIDER of the bug(s) in writing, and will provide PROVIDER with all information that CLIENT can identify to help PROVIDER to correct relevant issues which shall include steps to reproduce the effects of the bug(s), and PROVIDER agrees to reasonably assist CLIENT in correcting the identified bug(s) and resulting data errors within a reasonable time after notification thereof, at PROVIDER’s sole cost and expense. Regarding any bugs associated with any Deliverable that occur at any time after sixty (60) days following the Deliverable being accepted, CLIENT agrees to compensate Contactor to correct such bugs at the hourly rates set forth herein and/or in the SOW. Process errors that are a result of bad or malformed data or a failure of CLIENT to identify processes or infrastructure needed in an SOW are not consider Bugs will be classified as “Revisions” and correction or changes requires will be charged at time and materials.

 

  • Milestone Payments, Hourly Billing and Rates. In accordance with the mutually agreed upon SOWs requested by CLIENT from time-to-time (and executed by both parties hereto), PROVIDER shall perform the Services at the hourly/other rates (i.e. Fees) set forth in the respective SOW (if hourly rates are set forth therein). Should the SOW call for Fee payments to be made after the completion and acceptance of certain milestones, CLIENT will make those Fee payments upon completion and acceptance of those respective milestone completions.

 

  • Payment for the Services. In exchange for PROVIDER’s performance of the Services, CLIENT agrees to pay PROVIDER as set forth in the respective SOW (the “Fees”). Unless otherwise set forth in the SOW, Fees for each project (as set forth in a separate and independent SOW) shall be due as follows:  The SOW Retainer shall be due and payable upon full execution of a SOW, and the remaining portion of the Fees shall be paid in installments within 15 days of receipt of an invoice and any required backup documentation, as mutually agreed by the parties. If the parties are unable to mutually agree upon the payment installments and milestones, and/or if CLIENT is not making any payment installment timely, then PROVIDER shall be entitled to suspend the provision of Services hereunder (and any milestones, dates and/or deadlines shall be extended accordingly) until such mutual agreement is reached (and PROVIDER shall not be deemed to be in breach or default of this Agreement or a respective SOW in the meantime).  PROVIDER may require a “Discovery and Planning Fee” prior to the SOW Retainer. Such Fee shall be non-refundable, in consideration of PROVIDER’s planning and development services provided prior to the commencement of the SOW.  Once the payment installments and milestones are mutually agreed upon, then PROVIDER will deliver an invoice, containing the appropriate purchase order number for the SOW, if a purchase order was issued, to CLIENT by email to ”Invoice Receiver Here”, upon completion/satisfaction of each respective payment installment date/milestone, which contains detailed and itemized billing information related to the respective payment installment, and payment of such Invoice shall be due upon receipt by ACH to PROVIDER’s designated bank account.  An additional 3.0% of the invoice total will be added if the payment is made by credit or debit card.  Zelle is an acceptable payment method without any charge.

 

  • Types of Statements of Work. PROVIDER issues Statements of Work under three possible methods.  ) Costs not to Exceed.  A SOW issued under this type of proposal will be carried out by PROVIDER to complete the specified deliverable(s) in accordance with a cost that will not be exceeded. The actual cost of the SOW may be less than stated but will not be greater.  2.) Fixed Price.  A SOW issued under this type of proposal will be carried out by PROVIDER to complete the specified deliverable(s) in accordance with a cost that is fixed.  It will not be more, and it will not be less.  3.) Time and Materials.  A SOW carried out under this type of proposal will have the PROVIDER project team’s time tracked, and a record of any materials purchased will be kept.  In this case periodic invoices will be generated.

 

  • Expenses. Unless otherwise agreed in the applicable SOW, PROVIDER shall bear and be solely responsible for all expenses incurred in performing the Services and Deliverables, including travel, lodging, meals and any other expenses attributable to site visits with CLIENT. The Services and Deliverables may contain and include ongoing costs and expenses in addition to the Fees that are the responsibility of CLIENT such as software licenses, cloud platform licenses, and/or other ongoing costs, and PROVIDER will do its best to identify such costs and expenses ahead of time, but CLIENT shall be responsible for such costs/expenses regardless, such obligations to survive the termination of this Agreement and each SOW. As part of performing the Services and Deliverables, PROVIDER will not obligate CLIENT to any software license, cloud platform license and/or other ongoing costs without the express approval from CLIENT

 

  • Taxes. The Fees owed to PROVIDER will be paid exclusive of State or Local taxes which may be assessed or levied against the Services or any Deliverable resulting therefrom.  CLIENT agrees to pay and reimburse PROVIDER for all applicable sales taxes, whether provincial, state, federal, national or international, however designated, which are levied or imposed on the Services or PROVIDER’s performance thereof; excluding any taxes on or measured by PROVIDER’s payroll or income.  CLIENT shall be solely liable and responsible for the collection and payment of any taxes imposed upon the Services or Deliverables by the governmental authorities in the State in which the SOW is executed.  PROVIDER will register a sales tax account in any state where it established economic Nexus and report revenues regardless of whether tax is due on the provided services.  PROVIDER utilizes Avalara’s application to report and manage its sales tax liability.

 

  • Non-Exclusive Agreement. Nothing in this Agreement shall obligate or be construed to obligate CLIENT to request any of the Services from PROVIDER, or to obligate PROVIDER to perform the Services for the benefit of CLIENT unless specifically requested by CLIENT and accepted by PROVIDER pursuant to the terms of this Agreement. Further, the Services and Deliverables provided to CLIENT hereunder (and in any SOW), which constituting “work made for hire” (as provided herein below), CLIENT acknowledges and agrees that PROVIDER has and will likely be providing similar Services and Deliverables to other third-parties, and that PROVIDER shall not be prohibited from doing so, whether or not the third party is competitive with CLIENT.

 

 

  1. Intellectual Property

 

  • Ownership of Deliverables. Except as set forth in Section 2.4 below, CLIENT is and will be the sole and exclusive owner of all right, title, and interest in and to all Deliverables, including all intellectual property rights therein, whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world (collectively, “Intellectual Property Rights”).

 

  • Work Made for Hire. PROVIDER agrees to create all Deliverables as “work made for hire”, as defined in Section 101 of the Copyright Act of 1976. To the extent any Deliverables or Intellectual Property Rights therein do not qualify as, or otherwise fail to be, work made for hire, PROVIDER shall, and hereby does: (a) assign, transfer, and otherwise convey to CLIENT, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such Deliverables, including all Intellectual Property Rights therein; and (b) irrevocably waive any and all claims PROVIDER may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.

 

  • Further Actions. PROVIDER shall, and shall cause PROVIDER’s personnel to, take all appropriate action and execute and deliver all documents necessary or reasonably requested by CLIENT to prosecute, register, perfect, record, or enforce its rights in or to any Deliverables or any Intellectual Property Rights therein. PROVIDER hereby appoints CLIENT as PROVIDER’s attorney-in-fact with full, irrevocable power and authority to take any such actions and execute any such documents if PROVIDER refuses, or within a period deemed reasonable by CLIENT otherwise fails, to do so.

 

  • PROVIDER’s Intellectual Property. To the extent any Deliverable reflects, embodies, or contains any software, data, know-how, ideas, methodologies, specifications, and other technology owned by PROVIDER that was developed or otherwise acquired by PROVIDER prior to the Effective Date of this Agreement (collectively, the “PROVIDER IP”), PROVIDER retains exclusive ownership of such PROVIDER IP, and PROVIDER hereby grants to CLIENT such non-exclusive rights and licenses with respect to the PROVIDER IP that will allow CLIENT to use and otherwise exploit, perpetually throughout the universe for all or any purposes whatsoever, the PROVIDER IP, without incurring any fees or costs to PROVIDER (other than the Fees set forth herein) or any other person in respect of the PROVIDER IP (the “PROVIDER License”). The PROVIDER License: (a) is and shall remain non-exclusive, irrevocable, perpetual, paid-up, and royalty-free; (b) shall include the rights to use, reproduce, perform, display, modify, improve, create derivative works of, distribute, import, make, have made, sell, and offer to sell the PROVIDER IP, including all such modifications, improvements, and derivative works thereof; and (c) shall be freely assignable and sublicensable. Subject to the PROVIDER License, PROVIDER is and will remain the sole and exclusive owner of all right, title, and interest in and to the PROVIDER IP.

 

  • CLIENT’s Intellectual Property. Except as otherwise set forth herein, CLIENT is and shall remain the sole and exclusive owner of all right, title, and interest in and to any and 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 PROVIDER by or on behalf of CLIENT in connection with this Agreement and each and every SOW, whether or not it: (a) is owned by CLIENT, a third-party, or in the public domain; or (b) qualifies for or is protected by any Intellectual Property Rights (the CLIENTIP”), and any Intellectual Property Rights therein. Notwithstanding the foregoing, CLIENT hereby grants to PROVIDER the limited, royalty-free, non-exclusive right and license to the CLIENTIP” solely as may be necessary to incorporate such CLIENTIP into, or otherwise use such CLIENTIP” in connection with creating, the Deliverables (the CLIENT License”). The term of the CLIENT License shall commence upon CLIENT’s delivery of CLIENTIP” to PROVIDER and shall terminate upon CLIENT’s acceptance or rejection of the Deliverables to which the CLIENTIP” relate (the “License Term”). PROVIDER expressly acknowledges and agrees that it shall have no right or license to, and shall not, use any CLIENTIP” except during the License Term, and solely to the extent necessary to perform the Services and provide the Deliverables to CLIENT and that the CLIENTIP” shall be deemed CLIENT’s Confidential Information. Subject to the CLIENT License, CLIENT reserves all rights in the CLIENTIP”.

 

  • Third-Party Materials; Open-Source Components. No materials and information, in any form or media, in which any person other than CLIENT or PROVIDER owns any intellectual property right (collectively, “Third Party Materials”) may be included in the Deliverables, except as specifically set forth in the respective SOW. Additionally, PROVIDER shall not include in any Deliverables, and operation of all Deliverables in accordance with the applicable SOW shall not require the use of, any software components that are subject to open-source copyright license agreements or that otherwise may require disclosure or licensing to any third-party of any source code with which such software components are used or compiled (collectively, “Open-Source Components”), again, except as specifically set forth in the respective SOW. Regardless of whether listed as provided by this Section 2.6, PROVIDER subcontractors utilize certain intellectual property that is owned exclusively by such subcontractors, such as the Salesforce Evaluation Application and the Change Management System, and such shall remain exclusively owned by such subcontractors and CLIENT shall only have a limited right and license to use such, consistent with the terms of this Agreement, unless and until terminated by the respective subcontractors.

 

  • Security and Personal Information. PROVIDER represents and warrants that it has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines and procedures consistent with industry standards to exercise its best efforts to endeavor to protect CLIENT’s Confidential Information, data, personal information and any other information against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access, and that PROVIDER, to the best of its knowledge, will comply with all applicable law and regulation. Notwithstanding the foregoing, PROVIDER does not represent or warrant absolute, 100% guaranteed security regarding CLIENT’s Confidential Information, it being acknowledged by CLIENT that data and security breaches occur for reasons beyond the control of PROVIDER and absent any wrongful act and/or omission by PROVIDER. If any such security breach occurs, PROVIDER shall endeavor to provide CLIENT with written notice of such within twenty-four (24) hours of the incident. In the event that CLIENT provides Personal Information to PROVIDER, PROVIDER shall comply with all applicable privacy laws and exercise its best efforts to endeavor to protect the security of such Personal Information.  For the purposes of this Agreement, “Personal Information” means information about a directly or indirectly identifiable individual as defined in accordance with applicable privacy laws. Except to the extent necessary for PROVIDER to perform its obligations under this Agreement, PROVIDER shall endeavor to keep Personal Information confidential, shall have no rights to Personal Information, and, unless otherwise specifically agreed with CLIENT in writing, shall not access, use, process, disclose, or transfer Personal Information to any third party during or after the Term of this Agreement. Notwithstanding the foregoing, PROVIDER does not represent or warrant absolute, 100% guaranteed security regarding such Personal Information, it being acknowledged by CLIENT that data and security breaches occur for reasons beyond the control of PROVIDER and absent any wrongful act and/or omission by PROVIDER.

 

Article III.  Representations and Warranties

 

  • Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted herein, and to perform its obligations hereunder; and (b) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

 

  • PROVIDER’s Representations and Warranties. PROVIDER represents and warrants that: (a) it will perform all Services in a professional and workmanlike manner in accordance with industry standards and practices for similar services, and shall devote adequate resources to meet its obligations under this Agreement; (b) it is in compliance with, and will perform all Services in compliance with, all applicable law; (c) CLIENT will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind; (d) all Deliverables, including all updates, upgrades, new versions, new releases, enhancements, improvements, and other modifications thereof (but excluding CLIENT Intellectual Property, approved Third-Party Materials, and Open-Source Components) is or will be the original creation of PROVIDER; and (e) the Deliverables (excluding CLIENT Intellectual Property): (i) will not, to the knowledge of PROVIDER, infringe, misappropriate, or otherwise violate any Intellectual Property Right or other right of any third-party; and (ii) will comply with all applicable law.

 

Article IV.  Confidentiality; Non-Solicitation

 

  • Confidentiality.

 

  • The term “Confidential Information” means any information that is treated as confidential by either Party (the “Disclosing Party”) and provided to the other Party (the “Receiving Party”) pursuant to this Agreement or any SOW, regardless of the form of the information, whether the information was communicated verbally, in writing, by electronic media, or by other means, and whether the information is communicated directly or indirectly before or after the Effective Date hereof. Confidential Information does not include information that: (i) at the time of disclosure is, or becomes, generally available to the public other than as a result of any breach of this Agreement by the Receiving Party; (ii) at the time of disclosure is, or becomes, available to the Receiving Party on a non-confidential basis from a third-party source who, to the Receiving Party’s knowledge, is not subject to similar confidentiality obligations; (iii) was known by or in the possession of the Receiving Party prior to being disclosed by or on behalf of the Disclosing Party; or (iv) was or is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.

 

  • The Receiving Party agrees to hold all Confidential Information in strict confidence, to use or disclose the Confidential Information only as is required in its performance under this Agreement, and to disclose the Confidential Information to only those of its employees, agents, or subcontractors (collectively, its “Representatives”) who require such disclosure in order to perform hereunder and who are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement. The Receiving Party shall protect the Confidential Information that is in its possession or control using at least the same means it uses to protect its own Confidential Information, and in any event, in accordance with industry standards. The Receiving Party shall take all appropriate action, whether by instruction, agreement, or otherwise, to ensure the protection, confidentiality, and security of the Confidential Information, including any copies thereof, and to satisfy its obligations under this Agreement.

 

  • If the Receiving Party receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or government agency, the Receiving Party shall, to the extent legally permissible: (i) promptly notify the Disclosing Party of the request; (ii) consult with the Disclosing Party on the advisability of taking steps to resist or narrow that request; (iii) if disclosure of Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is legally required to be disclosed; and (iv) cooperate with the Disclosing Party in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed.

 

  • Non-Solicitation. Each party hereto agrees that, during the Term of this Agreement and for a period of twenty-four (24) months after expiration of the Term, neither Party will, without the express written consent of the other Party, knowingly hire any employee or contractor of the other Party and will not assist any other person or entity in such a solicitation. Additionally, each Party acknowledges that the identities of, and the terms of the other Party’s relationship with its clients and vendors are valuable trade secrets. In order to protect the trade secrets and Confidential Information of the other Party, and in exchange for the consideration and mutual agreements set forth herein, each Party agrees that from and after the Effective Date of this Agreement, such Party shall not, either directly or indirectly, call on, service, solicit, or accept competing business from the other Party’s clients and/or vendors which have been disclosed pursuant to this Agreement in any manner that interferes with the business relationship already in place, and neither shall such Party assist any other person or entity in such a solicitation or interference.

 

  • Acknowledgement. Notwithstanding any contrary provisions herein, each party agrees that the remedy at law for breach of this Article IV is inadequate and that injunctive relief will be available to prevent the breach or threatened breach thereof, and no bond or other security shall be required in connection with such injunctive relief. Each party acknowledges that the covenants in this Article IV are reasonable and necessary to protect the other party’s legitimate interest in its Confidential Information and goodwill, and that they are not so broad as to prevent the party from earning a livelihood after termination or expiration of this Agreement.

 

Article V.  Term and Termination

 

  • Term. This Agreement shall commence on Effective Date and shall continue thereafter for five (5) years, or such longer period lasting until the completion of the Services under all SOWs (the “Term”), unless terminated earlier pursuant to this Article V.

 

  • Termination for Cause. Either Party hereto, in its sole discretion, may terminate this Agreement or any SOW, in whole or in part, at any time prior to expiration of the Term, if the other Party breaches any material provision herein and fails to cure such breach within thirty (30) days from receipt of written notice thereof (although such thirty (30) day period will be extended as reasonably appropriate if the cure period requires more than thirty (30) days to cure).

 

  • Either Party may terminate this Agreement on ninety (90) days’ prior written notice to the other Party

 

  • Upon the termination of this Agreement or any SOW pursuant to this Section V, CLIENT shall immediately pay PROVIDER for the Services rendered prior to termination, and PROVIDER will provide to CLIENT any deliverables, work-in-process and documentation for Services rendered Deliverables in process prior to termination which shall be due and payable upon receipt of the invoice by CLIENT Any deliverables, work-in-process and documentation for Services rendered Deliverables during the 90 day period referred to in 5.4 shall be due and payable upon receipt of the invoice by CLIENT

 

 

  • Effect of Termination. Upon termination of this Agreement or any SOW, the CLIENT License granted to PROVIDER in the CLIENTIP” shall immediately and automatically terminate, and PROVIDER shall promptly return to CLIENT all CLIENTIP” not required by PROVIDER for continuing SOWs, if any. Additionally, upon the completion of work under the SOW, each party shall: (i) return to the disclosing party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on such party’s Confidential Information; and (ii) permanently delete and destroy the disclosing party’s Confidential Information from its computer systems. Each party agrees to provide the other party with written certification of the foregoing items upon request.

 

 

  1. Indemnification; Limitation of Liability

 

  • PROVIDER’s Indemnification. PROVIDER agrees to defend, indemnify, and hold harmless CLIENTand CLIENT’s affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns (each, a CLIENT Indemnitee) from and 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 cost of enforcing any right to indemnification hereunder that are incurred by a CLIENT Indemnitee (collectively, “Losses”) arising out of or resulting from any third party claim, suit, action, or proceeding (each, an “Action”) that is related to: (a) PROVIDER’s breach of any representation, warranty, covenant, or obligation of PROVIDER under this Agreement or any SOW; or (b) any negligence or more culpable act or omission (including recklessness or willful misconduct) in connection with the performance or activity required by or conducted in connection with this Agreement by PROVIDER. The obligations of this Section shall survive the termination of this Agreement and each applicable SOW.

 

  • CLIENT’s Indemnification. Likewise, CLIENT agrees to defend, indemnify, and hold harmless PROVIDER and PROVIDER’s affiliates, and each of their respective officers, directors, employees, agents, successors, and assigns (each, a “PROVIDER Indemnitee”) from and against any and all Losses arising out of or resulting from Action that is related to: (a) CLIENT’s breach of any representation, warranty, covenant, or obligation of “ “ under this Agreement or any SOW; or (b) any negligence or more culpable act or omission (including recklessness or willful misconduct) in connection with the performance or activity required by or conducted in connection with this Agreement by CLIENT. The obligations of this Section shall survive the termination of this Agreement and each applicable SOW.

 

  • Limitation of Liability. In no event shall either Party be liable to the other Party or to any other person or entity with respect to any subject matter of this Agreement, under any equity, common law, tort, contract, estoppel, negligence, strict liability, or other theory, for any incidental, special, punitive, consequential, or indirect damages; provided, however, that this Section shall not apply to or otherwise limit the damages arising out of or related to any breach of confidentiality or indemnification obligations herein. FURTHER, IN NO EVENT SHALL PROVIDER’s LIABILITY OR OBLIGATION TO PAY DAMAGES HEREUNDER EXCEED THE FEES PAID TO PROVIDER FOR THE RESPECTIVE SOW, PLUS ANY ATTORNEY’S FEES AWARDED TO CUSTOMER IN CONNECTION WITH ANY CLAIMS HEREUNDER. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND EACH APPLICABLE SOW

 

VII. Miscellaneous

 

  • Independent PROVIDER. The Parties’ relationship shall be that of independent contractors. This Agreement shall not create any franchise, fiduciary, agency, partnership, joint venture, employment, or special relationship between the Parties. Neither Party, nor the Party’s employees, agents, or representatives will be, or be deemed to be, employees, agents, or representatives of the other Party for any purpose, including, without limitation, federal, state, or international tax purposes. This Agreement does not create any agency relationship and neither Party is authorized to act for or on behalf of the other Party, or to bind the other Party in any manner or fashion, except per this Agreement. Notwithstanding anything in this Agreement or any SOW to the contrary, PROVIDER shall be solely responsible for providing its own vehicles, tools, and equipment necessary to perform the Services.

 

  • Authorized Representatives. PROVIDER has appointed Stephen Thompson as its primary representative for purposes of this Agreement (the “PROVIDER Representative”), except as otherwise appointed and/or changed in writing following the date hereof (or a special appointed representative for a particular SOW). Accordingly, notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that all SOWs, and any additional requests and authorizations related to Services performed or to be performed under this Agreement shall be communicated exclusively through the PROVIDER Representative, and no other agent or representative of PROVIDER shall have the authority to request or approve any Services hereunder. Likewise, CLIENT has appointed Company Appointed Leader as its primary representative for purposes of this Agreement (the “Company Here”Representative”), except as otherwise appointed and/or changed in writing following the date hereof (or a special appointed representative for a particular SOW). Accordingly, notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that all SOWs, and any additional requests and authorizations related to Services performed or to be performed under this Agreement shall be communicated exclusively through the “Company Here”Representative, and no other agent or representative of CLIENT shall have the authority to request or approve any Services hereunder.

 

  • Time is of the Essence. The Parties hereto acknowledge and agree that time is of the essence with respect to the Services and payment for such and agrees that prompt and timely performance of the Services in accordance with this Agreement and each SOW is strictly required.

 

  • Governing Law; Venue. This Agreement, the relationship of the Parties, and any litigation between the Parties shall be interpreted, construed, and enforced in accordance with the laws of the State of Texas, without regard to its choice of law principles. Any dispute arising out of this Agreement shall be brought exclusively in a court of competent jurisdiction in Collin County, Texas.

 

  • Mandatory Mediation. The Parties undertake to use reasonable efforts in good faith to resolve any dispute arising under this Agreement. Any dispute not resolved among the Parties within thirty (30) days from the commencement of the dispute shall be submitted to mediation with an agreed mediator located in Collin County, Texas. If no agreement on a mediator is reached within forty (40) days from the commencement of the dispute, the Parties agree to petition AAA Mediation Services to provide a list of five (5) qualified mediators with experience presiding over claims substantially similar to those involved in the dispute. Within five (5) days of receiving the list of qualified mediators, each Party shall submit to AAA Mediation Services a numerical ranking of their preference as between these five (5) mediators. The highest mutually ranked mediator shall preside over the Parties’ dispute.

 

  • Survival. The rights and obligations of the parties set forth in Article II, Article III, Article IV, and Article VI, and any right or obligation of the Parties in this Agreement or any SOW which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement or the SOW, will survive any such termination or expiration.

 

  • Force Majeure. Neither Party to this Agreement shall be liable to the other for any loss, cost, or damages arising out of, or resulting from, any failure to perform in accordance with the terms of this Agreement, where such failure is beyond the reasonable control of such Party, which, as used in this Agreement, shall be deemed to mean, but not be limited to, acts of God, strikes, lockouts, or other industrial disturbances, wars, whether declared or undeclared, blockades, insurrections, riots, governmental action, pandemics and/or epidemics (including but not limited to Covid-19/coronavirus), explosions, fire, floods, or any other cause not within the reasonable control of either Party. However, notwithstanding the foregoing, payment of the Fees provided for herein are a separate and independent covenant and shall be due in exchange for the provision of the Services, regardless of any event of Force Majeure that may have a business effect upon CLIENT. The provisions of this Section shall survive the execution hereof, as well as the termination hereof.

 

  • Effect of Partial Invalidity. The invalidity of any part of this Agreement shall not be deemed to affect the validity of any other part. In the event that any provision of this Agreement is held to be invalid, the Parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both Parties subsequent to the removal of the invalid provision.

 

  • Assignment. Neither this Agreement nor any SOW may be assigned or transferred by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, that “Company Here       “ may assign its rights and obligations under this Agreement or any SOW, without PROVIDER’s consent, to any subsidiary or other entity under common ownership or control, or to any purchaser of CLIENT’s controlling ownership/equity and/or substantially all of its assets, and further provided that PROVIDER may assign its rights and obligations under this Agreement or any SOW, without CLIENT’s consent, to any purchaser of PROVIDER’s controlling ownership/equity and/or substantially all of its assets.

 

  • No Third-Party Beneficiaries. No person or entity other than PROVIDER and CLIENT (and their successors and permitted assigns) shall have any enforceable rights under this Agreement. This Agreement is not a third-party beneficiary contract.

 

  • Notices. All notices required hereunder or thereunder shall be in writing and will be deemed to have been served as of the date received, and shall be personally delivered, sent by registered or certified mail, return receipt requested, or by nationally recognized overnight courier, or delivered via electronic mail, addressed to the Parties at the following addresses:

 

 

 

 

 

 

 

 

 

 

 

 

 

“Company Here”:

Company Address:

Company City, State, Zipcode:

Attn: Company Appointed Leader

Title:

Telephone Number:

Fax Number:

Email Address:

Copy to:

Copy to name

Copy to name 2

Copy to address

Copy to Company City, State, Zipcode:

Copy to telephone number

Copy to email

PROVIDER Technology Consultants LLC

1800 Preston Park Blvd Suite 210

Plano, TX 75093

Attn: Stephen L Thompson

CEO

469.522.2531

Fax Not Accepted for Notice

[email protected]

Copy to:

Leggett Clemons Crandall, PLLC

700 Granite Parkway, Ste. 950

Plano, TX 75024

Attn: Steve H. Clemons

Tel: 214 473-8686

Email:  [email protected]

 

 

Either Party may change the address for notice set forth above by delivery of written notice to the other Party.

 

  • Waiver. The failure of either Party to insist on strict performance of any of the provisions or terms of this Agreement shall not be construed as a waiver or relinquishment of any such provision or term, but the same shall continue and remain in full force and effect.

 

  • Entire Agreement; Counterparts. This Agreement, along with any SOW executed pursuant hereto, shall constitute the entire agreement between the Parties. Any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding on either Party except to the extent expressly set forth in this Agreement. Any modification of this Agreement or additional obligation assumed by either Party in connection with this Agreement shall be binding only if evidenced in a writing signed by each Party or an authorized representative of each Party. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

 

 

 

 

IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed by its authorized representative to be effective as of the Day and Year of Agreement signing.

 

                                                                                                               

 

“Company Name Here”                                                                                     PROVIDER TECHNOLOGY CONSULTANTS LLC                                                                                                                                                                a Texas LLC

 

 

By: ___________________________________                                          By: ___________________________________

                                                                                                                                      Stephen Thompson, President/CEO

Title:

 

 

EXHIBIT “A”

FORM OF STATEMENT OF WORK

 

This Statement of Work (“SOW”) is entered into pursuant to and is governed by that certain Master Service Agreement (the “MSA”) dated effective [Month, Day, Year], by and between PROVIDER TECHNOLOGY CONSULTANTS LLC, a Texas corporation (the “Consultants”), and [CLIENT NAME]. a [State] [entity, e.g., corporation, llc, etc.].  The parties hereby agree upon the terms and conditions of this SOW by affixing their signatures below.

Name of the Project or Statement of Work

 

Location in which the SOW will be carried out

 

Names and roles of PROVIDER team

 

Names and roles of client team

 

Proposed start date

 

Estimated completion date

 

Background

 

Deliverables (overview)

 

Goals, Client Benefits, (ROI)

 

Fee Schedule

 

Risks

 

Client Signature

 

Date

 

PROVIDER Signature

 

Date

 

Technical and Scoping Exhibits to this SOW

 

Listing of Exhibits