MASTER SERVICES AGREEMENT
Each Statement of Work (SOW) and/or quotation issued by GadellNet Consulting Services, a Missouri limited liability company (“Consultant”) is an offer to sell Products and/or Services (herein defined) to purchaser (“Client”) and includes, is governed by, and Client agrees to be bound by, this Master Solutions Agreement (“Agreement”). Consultant’s SOW and/or quotation and this Agreement shall be deemed accepted by Client upon Consultant’s receipt of a purchase order or a signed SOW. Acceptance of Consultant’s SOW and/or quotation and this Agreement is expressly limited to the terms contained in Consultant’s SOW and/or quotation and this Agreement. Consultant rejects any terms and conditions contained in Client’s forms that are additional to or different from those set forth in Consultant’s SOW and/or quotation or in this Agreement. Client and Consultant are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.” This Agreement shall be effective as of the first time Client submits a purchase order to Consultant, signs a Consultant SOW, or otherwise accepts a Consultant quote (“the “Effective Date”).
In the event of any inconsistencies between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control. The Parties may specify in the applicable SOW that a particular provision of the SOW is to supersede a provision of this Agreement, in which case the superseding SOW provisions shall be applicable only to such SOW and shall be effective for such SOW only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement.
1. TERM
1.1 Term. The initial term of this Agreement shall commence as of the first date services are actually performed on behalf of Client by GadellNet (such date, the “Start Date”) and shall continue for one year thereafter (the “Initial Term”); provided, however, that the term of this Agreement shall automatically renew for subsequent one year renewal terms each beginning on the applicable anniversary of the Start Date (each a “Renewal Term” and collectively with the Initial Term, the “Term”).
2. SERVICES
2.1 Scope of Services.
2.1.1 Consultant may provide the following services to the Client under this Agreement (collectively, the “Services”):
(a) the services set forth in detail in a Statement of Work, each a part of this Agreement and adopted and incorporated as if fully set forth herein (the “Core Services”).;
(b) the Termination Assistance Services described in Section 3 of this Agreement;
(c) Any additional schedules, exhibits, or quotes separately authorized by Client for additional services provided by Consultant;
2.1.2 Consultant and Client acknowledge that the Services may be supplemented, enhanced, modified or replaced in accordance with this Agreement. Any change requested by Client must be mutually agreed upon by the parties in writing.
3. TERMINATION
3.1 Termination. In the event this Agreement is terminated prior to the expiration or termination of any SOW, the terms and conditions of this Agreement will continue in effect until the expiration or termination of such SOW.
3.2 Payment upon Termination. If this Agreement or any SOW is terminated, the Client shall be responsible for payment of remaining Core Fees and any other outstanding fees earned, expenses, and costs due by the date of termination.
4. FEES; INVOICING AND PAYMENT
4.1 Payment of Fees. In consideration of Consultant’s performance of Services, Client agrees to pay Consultant the applicable charges set forth in the SOW. It is understood that any and all Services requested by Client that fall outside of the terms or scope of this Agreement will be quoted and billed as separate individual services. Unless otherwise detailed in the SOW, onboarding fees are due at the time of signing a SOW and the base monthly charge shall be billed on the first day of the month in which the Services are to be provided. Additional charges for services, hardware or software as the case may be, shall be billed on the last day of the month in which the charges are incurred or become billable.
4.2 Adjustment to Fees. The fees set forth in this agreement, including but not limited to hourly rates, monthly fees, fixed fees, and Core Fees are to increase annually in an amount equal to five percent (5%) or the most current then annualized CPI-U percent as indicated at http://www.bls.gov/cpi/, whichever is higher. This rate increase shall occur at the anniversary of the execution date of this schedule, or other date as defined by this Agreement.
In the event that the Bureau of Labor Statistics ceases to publish the CPI or substantially changes its content or format, Client and Consultant shall substitute another comparable measure published by an agreed-upon source.
4.3 Taxes. Client shall be responsible for any federal, state, and local sales, use, excise, value added, services, consumption, customs, duties, and other tax, however designated or levied based upon Consultant’s Charges for the Services, including, without limitation, taxes on equipment, software, consulting, programming, maintenance charges or other services that are used or consumed by Client based upon Consultant’s Charges for the Services. Client shall not be responsible for the withholding or payment of any payroll taxes relating to Consultant’s income or Consultant’s Personnel. This provision shall not apply to any taxes for which Client is exempt and for which Client has furnished Consultant with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Incidental Expenses. In addition to the Fees and compensation set forth in Section 4.1, Customer shall reimburse Consultant for all reasonable expenses incurred in the course of providing the Managed Services and Additional Work. Consultant will seek approval in advance wherever possible, except, for example, in cases where seeking approval may delay restoration of services.
4.5 Invoicing. Except as otherwise provided in the applicable SOW, Invoices will be sent to Customer each month and payment shall be due to Consultant no later than twenty (20) calendar days after receipt, or as specified on the invoice.
4.6 Electronic Payment. In respect to the base monthly fees for ongoing Services (the “Monthly Service Fees”) payable by Client, Consultant will draft electronic payment from Client supplied bank account using an ACH transfer. Client may be subject to additional transaction fees when payment by Client is made by credit card.
4.7 Finance Charges. If any payment is not made on or before the due date, Customer agrees to pay a monthly finance charge of 1.5%, or the maximum legal rate of interest allowed by the governing law, on any outstanding balance until such amount(s) are paid in full.
4.8 Disputed Charges. Client shall pay undisputed charges when those payments are due. Client may withhold payment of particular amounts that Client disputes in good faith, provided that (i) the amount Client may withhold at any one time, which Client has notified Consultant that it disputes in good faith, pending resolution of any such dispute, shall not in the aggregate exceed an amount or amounts in excess of $1,000 and (ii) prior to the applicable due date for the charges for which Client intends to withhold payment, Client shall provide Consultant with written notice of Client’s intention to withhold payment and the specific reason(s) for such action. The Parties agree that failure by Client to provide Consultant with written notice of Client’s intention to withhold payment with specific reason(s) for such action prior to the applicable due date shall be a waiver by Client of any right to withhold payment.
5. CLIENT RESPONSIBILITIES
5.1 Client Representative. On or promptly following the Effective Date, Client shall designate one individual to whom Consultant communications concerning this Agreement may be addressed (the “Client Representative”), who shall have the authority to act on behalf of Client in all day-to-day matters pertaining to this Agreement. Client may change the designated Client Representative at any time by providing notice to Consultant.
5.2 Cooperation. Client shall cooperate with Consultant and its suppliers by, among other things, making information, management decisions, acceptances, and approvals of Client available as required in this Agreement within the time periods specified herein for such information or approvals or, where no time period is specified, within a reasonable time period. In addition, Client shall notify Consultant on a reasonably timely basis if Client disagrees with a decision made or action taken by Consultant or Consultant’s supplier where Client has been informed of or has knowledge of such decision or action and then disagrees. The Client Representative or his or her designee will be the principal point of contact for obtaining such decisions, information, approvals and acceptances. Client acknowledges that certain Services to be provided by Consultant may be dependent on Client providing certain data, information, or assistance, and that such cooperation may be essential to the performance of Services provided by Consultant. The Parties agree that any delay or failure by Consultant to provide Services hereunder which is caused by Client’s failure to provide timely cooperation reasonably requested by Consultant shall not be deemed to be a breach of Consultant’s performance obligations under this Agreement.
5.3 Software Licensing. Consultant does not support unlicensed software. Client represents that all installed software is properly and legally licensed. In the event that Client has any unlicensed software on premises, Client is responsible for notifying Consultant of such so that a remediation plan can be prepared and implemented to assist Client in achieving 100% license compliance.
5.4 Required Consents. As used in this Agreement, “Required Consents” means any consents, licenses, or approvals required to give Consultant, or any person or entity acting for Consultant under this Agreement, the right or license to access, use and/or modify in electronic form and in other forms, including, without limitation, derivative works, the Client Data and software, without infringing the ownership or intellectual property rights of the providers, Consultant, or owners of such Client Data and software. Client shall obtain and keep in effect all Required Consents necessary for Consultant to perform all of its obligations as set forth in this Agreement. Upon request, Client will provide to Consultant evidence of any Required Consent. Consultant will be relieved of its obligations to the extent that they are affected by Client’s failure to promptly obtain and provide to Consultant any Required Consents. Consultant will adhere to reasonable terms and conditions pertaining to Content as notified in writing to Consultant. Consultant agrees not to remove or alter any copyright or other proprietary notice on or in any Content without Client’s consent.
5.5 Encryption. Client shall encrypt at the application level Confidential Information, Client Data, and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Client’s contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).
5.6 Additional Client Responsibilities. In addition to the responsibilities set forth in Section 6 of this agreement, Client agrees to assume the following responsibilities:
5.6.1 Maintain an adequate level of training for Client’s staff;
5.6.2 Maintain vendor supportable versions of software and hardware in accordance with manufacturer or publisher’s specifications;
5.6.3 Provide timely access to people and information including, but not limited to, the following areas:
(a)Operations personnel knowledgeable of system and network administration and problem resolution flow.
(b) Personnel knowledgeable about the applications that will be running on the systems.
(c) Management personnel who are knowledgeable of the architecture of the project to resolve issues that occur during the project.
(d)The above personnel shall be designated in advance and be readily available to the Consultant consultants. To the extent possible, meetings will be scheduled in advance. However, access on an ad hoc basis may be necessary as work proceeds.
5.6.4 Identify and have access to the main communications area in the occupied building. Client shall ensure that all carrier circuits that are intended to connect to Consultant provided or re-programmed equipment have been fully tested, extended, identified/labeled, and subsequently proven to be suitable to carry voice and data network traffic.
5.6.5 Assign Client contacts who are deemed capable and competent to interact with GadellNet and who are authorized to signoff and approve the required parts of the implementation.
5.6.6 Provide appropriate work areas for Consultant resource(s) when they are on-site. This includes, but is not limited to, a work area and internet access.
5.6.7 Provide all necessary security access to the locations where the work is to be delivered, as well as the passwords, equipment, etc. required to successfully complete the project. Provide all of the necessary support agreements for the software that is needed for the environment.
5.6.8 Have any and all licensing issues related to the movement of applications understood and resolved. New license key codes, if required, must be obtained by the Client.
5.6.9 Have finalized all contract negotiations with third-party suppliers for hardware, software, physical requirements, and/or additional network equipment required for Consultant to perform the services. Client will provide Consultant with an updated list of all third-party contacts, as well as Client’s assigned project coordinator and all contacts necessary to facilitate the services stated in the Quotation.
5.6.10 Purchase and maintain internet connectivity suitable and sufficient for (i) reliable organization operations and (ii) backing up data requiring backup in a timely manner
5.6.11 Maintain required minimum standards for services as published by consultant; and
5.6.12 Maintain reasonable levels of cybercrime and cyber insurance to adequately recover from damages and mitigate risks associated with security incident response, security incident recovery, and 3rd party costs that could be incurred as a result of a cybersecurity incident, compromise, or data breach.
6. USE OF CLIENT FACILITIES
6.1 Client shall provide Consultant and Consultant’s personnel access to enter portions of the facilities occupied by equipment covered under this Agreement (“Client Facilities”). Consultant shall use Client Facilities in a reasonable manner to fulfill the obligations defined under this agreement and, to the extent possible, Consultant shall minimize interfacing with Client’s and Client’s contractors’ operations.
7. FINANCIAL AND OPERATIONAL RESPONSIBILITY, SOFTWARE, EQUIPMENT, AND THIRD PARTY CONTRACTS
7.1 Financial Responsibility. Client shall be responsible for third party fees or expenses incurred on and after the Effective Date associated with Client-owned new, substitute or replacement software, materials, equipment, equipment leases or third party contracts (including upgrades, enhancements, new versions or new releases of such software, materials, or equipment).
With respect to equipment and software for which Client has financial responsibility, Client shall enter into or maintain in effect commercially reasonable and appropriate maintenance agreements with applicable Client third party contractors that are reasonably adequate to allow Consultant to provide the Services in accordance with this Agreement.
7.2 Client Provided Equipment. As of the Effective Date, Client grants to Consultant’s personnel for the sole purpose of performing the Services, the right of access to, and use of, Client equipment that is owned or leased by any of the Client or any of their affiliates.
8. CONFIDENTIALITY
8.1 Protection of Confidential Information. As used in this Agreement, “Confidential Information” means all information exchanged between the Parties including, but is not limited to, research, development, trade secrets, finances, business relationships, and/or business affairs. Client and Consultant each shall (i) keep confidential all Confidential Information given by one Party (the “Disclosing Party”) to the other Party (the “Recipient”), or otherwise obtained by the Recipient, and shall not (except as expressly permitted by this Agreement or by the Disclosing Party in writing) use the other Party’s Confidential Information for its own benefit or for the benefit of any other party or not disclose the Confidential Information to any third party or make copies of material containing the Confidential Information except as necessary to perform under this Agreement; (ii) take appropriate steps to safeguard the Disclosing Party’s Confidential Information; (iii) implement appropriate security practices against any unauthorized copying, use, disclosure, access, damage or destruction of the Disclosing Party’s Confidential Information; (iv) take all appropriate and necessary steps to enforce against any third party (and to assist the other Party to so enforce) any obligation of confidence imposed or required to be imposed by this Agreement; and (v) do all things, execute all documents and give all assistance reasonably required by the Disclosing Party to enforce any obligation of confidence imposed or required to be imposed by this Agreement.
8.2 Exceptions to Obligations of Confidentiality.
8.2.1 Nothing in this Agreement shall prohibit the use, copying, or disclosure by the Recipient of Confidential Information (other than Confidential Information subject to protection by law) to the extent that (a) such Confidential Information is publicly available other than through the fault of the Recipient or a person that was provided with the information by the Recipient; (b) such Confidential Information has been independently developed by the Recipient or its Affiliates without reference to the Confidential Information of the other Party; (c) the Disclosing Party has approved in writing the particular use or disclosure of the Confidential Information; (d) such Confidential Information is already known by the Recipient without an obligation of confidentiality; or (e) such Confidential Information is independently or properly received from a third party without an obligation of confidentiality.
8.2.2 Nothing in this Agreement shall prevent the Recipient from disclosing any Confidential Information where the disclosure is legally required to be disclosed by Recipient pursuant to judicial, regulatory, or governmental order, provided that the Recipient (a) uses commercially reasonable efforts to minimize any such disclosure and, to the extent permitted by applicable law, assists the Disclosing Party in preventing or restricting the disclosure; (b) where practicable and permitted by applicable law, gives the Disclosing Party prompt advanced written notice of such requirement to disclose to enable the Disclosing Party to seek an appropriate protective order; and (c) uses commercially reasonable efforts to require the recipient of such Confidential Information to preserve the confidential nature of the Confidential Information once disclosed.
8.3 Period of Confidentiality. The Parties’ obligations of non-disclosure and confidentiality with respect to the other Party’s Confidential Information shall survive the expiration or termination of this Agreement for the longer of: (i) the period required by applicable law, or (ii) five (5) years following the termination of this Agreement.
8.4 Returning Material, Data, and Information. All Confidential Information shall remain the exclusive property of the Disclosing Party. On Termination of this Agreement or at any time upon request, the Recipient shall promptly return (and shall cause its personnel to return) all or any specified part of the Party’s Confidential Information and all physical and written records containing the Party’s Confidential Information.
8.5 Equitable Remedies. The Parties acknowledge that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Article 9, and that such breach would result in immediate and irreparable harm to the Disclosing Party; therefore, in addition to all other remedies the Disclosing Party have at law or under this Agreement, the Disclosing Party shall be entitled to seek immediate injunctive relief to compel Recipient to cease and desist all unauthorized use and disclosure the Confidential Information.
9. SAFEGUARDING OF INFORMATION AND SECURITY
9.1 Rights in Client Data. Client Data shall be and remain, as between the Parties, the property of Client and nothing in this Agreement shall grant to Consultant any right, title or interest in such information. No Client Data, or any part thereof, may be assigned, leased, or otherwise disposed of to third parties by Consultant or commercially exploited by or on behalf of Consultant. Client grants to Consultant a non-exclusive, limited, non-transferable license to use, store, and otherwise handle Client Data for the purpose of performing the Services under this Agreement. Upon Client’s request, on termination or expiration of this Agreement for any reason (including termination for cause), or, with respect to any particular data, on such earlier date that the same will be no longer required by Consultant in order to render the Services hereunder, Client Data (including copies thereof) will be promptly returned to Client by Consultant in a form reasonably requested by Client or, if Client so elects, will be destroyed; provided that Consultant shall have no obligation to destroy any Client Data that, pursuant to Consultant’s reasonable belief based upon the advice of counsel, is subject to a claim, dispute, lawsuit, or subpoena or in any other circumstances in which Consultant reasonably believes the destruction of such Client Data would be unethical or unlawful until such issue is resolved.
9.2 Security. Consultant will establish and maintain environmental, safety and facility procedures, data security procedures, and other safeguards against the destruction, loss, unauthorized access or alteration of Client Data in the possession of. Client will have the right to establish backup security for Client Data and to keep backup data and Client Data files in its possession if it chooses. Without limiting the generality of the foregoing, Consultant personnel will not attempt to access any data, files, or programs which they are not entitled to access under this Agreement. If Consultant discovers that such access was attained, Consultant will report such incident to Client, describe in detail any accessed materials and return to Client any copied or removed materials. Consultant will institute systems security measures consistent with commercially reasonable practices in the information technology services industry to guard against the unauthorized access, alteration, or destruction of Client Data.
10. SOFTWARE RIGHTS
10.1 Supplied Software and Materials. Consultant shall retain all right, title and interest in and to software, materials supplied by Consultant and any modifications thereto (“Performance Tools”), including all intellectual property rights therein, which are offered for the benefit of Client in performance of the Services.
10.2 Ownership of Developed Software. Client shall retain all copyright, patent, trade secret, and other intellectual property rights Client may have in any software created or developed by Consultant specifically for Client under this Agreement (“Works Made for Hire”). The grant is conditioned upon full payment of the compensation due Consultant under this Agreement.
11. WARRANTY
11.1 By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement, with all laws and regulations governing its possession and use of Client Data and its provision or use of the Services; and c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
11.2 By Client. Client represents and warrants to Consultant that: (a) it owns, or is a licensee of, having the right to sublicense, the Client Data and that Client has the right to grant Consultant the rights that Client purports to grant in this Agreement; (b) Consultant’s possession or use of Client Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
11.3 By Consultant. Consultant represents and warrants to Client that the Services shall be performed in a good, workmanlike, professional and conscientious manner by experienced and qualified employees of Consultant according to the generally accepted standards of the industry to which the Services pertain. For Services containing a deliverable, such Services will be deemed accepted by Client if not rejected in a reasonably detailed writing within five (5) days of submission to Client, or as otherwise identified in the applicable Statement of Work. In the event the Services provided by Consultant are not in conformance with this warranty, Client must provide written notice to Consultant within five (5) days after the performance of the Services and such notice will specify in reasonable detail the nature of the breach. Upon confirmation of the breach, Consultant will use commercially reasonable efforts to take the steps necessary to correct the deficiency at no charge to Client. This is Client’s sole and exclusive remedy for breach of this warranty.
11.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF CONSULTANT IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF CONSULTANT. CLIENT IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH CONSULTANT CANNOT BE HELD LIABLE.
12. LIMITATION OF LIABILITY
12.1 Types of Damages. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, COLLATERAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, OR ANTICIPATED SAVINGS LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY (WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, TORT, STRICT LIABILITY, WARRANTY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE) EITHER IN CONTRACT OR TORT, EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (C) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE.
12.2 Amount of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONSULTANT’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), SHALL BE LIMITED IN ALL CASES TO AN AMOUNT WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CLIENT TO CONSULTANT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW.
12.3 Applicability. The terms in this Section 12 shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 12 shall apply to not limit liability for such acts and omissions, but will apply for all other acts and omissions.
12.4 Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE SERVICES WOULD HAVE BEEN HIGHER.
13. INDEMNITY
13.1 The Parties agree to and shall indemnify, defend, and hold harmless each other and their respective successors, officers, directors, agents, and employees, from and against any and all actions, claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney’s fees, for third party claims based on the grossly negligent acts or omissions of the indemnifying party, its successors, officers, directors, agents, and employees.
14. DISPUTE RESOLUTION
14.1 Dispute Resolution. The Parties desire to avoid all forms of traditional litigation with respect to any and all disputes, controversies or claims concerning, arising out of or relating to this Agreement (“Disputes”) and therefore agree that any such Dispute between the Parties will be resolved using Dispute resolution procedures as follows: Either Party may provide the other Party written notice of a Dispute (the “Dispute Notice”). Upon receipt of the Dispute Notice, the Client Representative and Consultant Client Executive shall use good faith efforts to resolve the Dispute. Disputes that cannot be resolved by the Client Representative and Consultant within 30 days after receipt of the Dispute Notice shall be submitted to binding arbitration with the American Arbitration Association, to be determined and resolved by a single arbitrator the rules and procedures in effect at the time of submission and the Parties hereby agree to share equally in the costs of said arbitration. The Parties further agree that upon the resolution of the dispute, the prevailing party shall be entitled to recover reasonable and necessary attorneys’ fees and costs of arbitration to include the arbitrators’ fees subject to submission and determination by the arbitrator of the amount of reasonable fees and costs. This Section shall not apply to routine collections matters.
14.2 Equitable Relief. Each Party shall be entitled to seek equitable relief against the other Party (in addition to any other rights available under this Agreement or at law) for the other Party’s breaches of its obligations under this Agreement.
14.3 The provisions set forth in this Article 14 shall survive termination or expiration of this Agreement.
15. FORCE MAJEURE
15.1 Force Majeure Events. Neither Party shall be liable for any breach or delay in performance of its obligations under this Agreement if, and to the extent that, (a) the breach or delay is directly caused by fire, flood, earthquake, elements of nature or act of God; war, riot, civil disorder or revolution; industry-wide strikes, lock-outs or labor disputes; or other events beyond the non-performing Party’s reasonable control; (b) such breach or delay is not the fault of the non-performing Party; (c) such breach or delay could not have been prevented by the non-performing Party taking reasonable precautions, and (d) such breach or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means (including with respect to Consultant by Consultant meeting its obligations for performing disaster recovery services as described in this Agreement) (any such event for which a non-performing Party is not liable for default or delay in the performance of its obligations under this Section 15.1 is referred to as a “Force Majeure Event”.
15.2 Notice. Upon the occurrence of a Force Majeure Event, (i) the non-performing Party shall immediately notify the other Party of the occurrence of the Force Majeure Event, describing the circumstances causing such delay of performance to a reasonable level of detail, and giving an estimate of when performance will recommence; and (ii) the non-performing Party shall perform (or recommence performing) its obligations as soon as, and to the extent, possible, including through the use of alternative sources, workarounds, and plans.
16. GENERAL
16.1 Staff. Consultant is an independent Contractor and neither the Consultant nor Consultant’s Personnel are employed by Client. Consultant is hereby contracting with Client for the services described in this Agreement and Consultant reserves the right to determine the method, manner, and means by which the services will be performed, and the Personnel will be supervised and managed by the Consultant. Consultant is not required to perform the services during a fixed hourly or daily time. Consultant shall not be required to devote full time to the performance of the services required hereunder, and it is acknowledged that Consultant has other clients and offers services to the general public. The order or sequence in which the work is to be performed by Consultant and the Personnel shall be under the control of the Consultant. Client will not be responsible for withholding any amount that would normally be withheld from an employee’s pay.
16.2 Non-Solicitation of Employees and Subcontractors. During any Term and for twelve (12) months thereafter, Client shall not solicit, seek to retain or retain the services (whether as an employee, independent contractor or otherwise) of any employee of Consultant (or ex‐employee within twelve (12) months of the employee’s date of termination of employment) that has worked to provide, or otherwise assisted with in any way, any of the Services to Client under the Agreement (each a “Consultant Employee”). Client and Consultant agree that any breach of the foregoing obligation would result in material damage to Consultant and that it would be difficult to determine the damages that would be caused if the contemplated breach were to occur.
If written approval is not provided by the CEO of Consultant and Client hires or contracts with a Consultant Employee contrary to this Section 16.2, the Client shall pay the Consultant damages in an amount equal to 25% of the total compensation, including salary, wages, bonuses, commissions, and employee benefits, cost of training, etc., that the Consultant Employee received during the prior twelve (12) months of employment (the “Liquidated Damages”). If a Consultant Employee has less than twelve months of employment, the Liquidated Damages will be based on an annualized total compensation received up to date the Consultant Employee is hired by or contracts with the Client. Because of the unique services Consultant offers and the difficulty of determining actual damages in losing trained Consultant Employees, the Parties acknowledge that the Liquidated Damages are not imposed on Client as a penalty, and any measure of Liquidated Damages stated in this section is based upon a reasonable estimate of the foreseeable actual damages incurred by Consultant.
16.3 Binding Nature and Assignment. This Agreement will be binding on the Parties and their respective successors and permitted assigns. Neither Party may, or will have the power to, assign this Agreement without the prior written consent of the other provided however, either Party may assign this Agreement in its entirety without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets . The Parties shall not unreasonably withhold consent. Any attempted assignment that does not comply with the terms of this Section shall be null and void.
16.4 Entire Agreement; Amendment. This Agreement, including any Schedules and Exhibits referred to herein and attached hereto, each of which is incorporated herein for all purposes, constitutes the entire agreement between the Parties with respect to the subject matter hereof. There are no agreements, representations, warranties, promises, covenants, commitments or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements, representations, warranties, promises, covenants, commitments or undertaking, whether written or oral, with respect to the subject matter contained in this Agreement. No amendment, modification, change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the Party against which such amendment, modification, change, waiver, or discharge is sought to be enforced.
16.5 Notices. All notices, requests, demands, and determinations under this Agreement (other than routine operational communications), will be in writing and will be deemed duly given (i) when delivered by hand, (ii) one day after being given to an express overnight courier with a reliable system for tracking delivery, or (iii) six calendar days after the day of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
In the case of Client: to the address on any purchase documents or as requested by Client.
In the case of Consultant:
GadellNet Consulting Services, LLC
1520 South Vandeventer Ave.
St. Louis, MO 63110
Attention: CEO
A Party may from time to time change its address or designee for notification purposes by giving the other prior written notice of the new address or designee and the date upon which it will become effective.
16.6 Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the Parties hereto.
16.7 Headings. The article and section headings and the table of contents used herein are for reference and convenience only and shall not be considered in the interpretation of this Agreement.
16.8 Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement and the application of the challenged provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision shall be valid and enforceable to the full extent permitted by law.
16.9 Consents and Approval. Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, confirmation, notice or similar action by either Party is required under this Agreement, such action shall not be unreasonably delayed or withheld. An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.
16.10 Waiver of Default; Cumulative Remedies.
16.10.1 A delay or omission by either Party hereto to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained. All waivers must be in writing and signed by the Party waiving its rights.
16.10.2 Except as expressly set forth herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise. The election by a Party of any remedy provided for in this Agreement or otherwise available to such Party shall not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract or otherwise.
16.11 Survival. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect. Additionally, all provisions of this Agreement will survive the expiration or termination of this Agreement to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein.
16.12 Publicity. Neither Party shall use the other Party’s or its Affiliates’ (and Consultant shall not use a Client’s) name or mark or refer to the other Party or its Affiliates’ (or a Client in the case of Consultant) directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, including in any promotional or marketing materials, Client lists or business presentations without the prior written consent of the other Party prior to each such use or release. Neither Party shall make any public statements about this Agreement, the Services or its relationship with the other Party without the other Party’s prior approval. Notwithstanding the foregoing, (i) either Party may privately indicate to third parties that Consultant is providing services to the Client, unless directed not to do so by Client, (ii) Consultant may use Client as a private reference, unless directed not to do so by Client, and (iii) either Party may make such press releases, public announcements, filings and other public disclosures as may be required by Law, provided that, such Party (1) gives the other Party prior notice of the required or ordered press release, public announcement, filing or public disclosure and (2) incorporates any reasonable amendments requested by the other Party that do not affect compliance with the applicable Law or order.
16.13 Service Marks. Each Party agrees that it shall not, without the other Party’s prior consent, use any of the names, service marks or trademarks of the other Party (or a Client in the case of Consultant) in any of its advertising or marketing materials, without the prior written consent of the other Party prior to each such use or release.
16.14 Export. The Parties acknowledge that certain equipment, software, and technical data to be provided hereunder and certain transactions hereunder may be subject to export controls under the laws and regulations of the United States, the European Union, the United Nations and other jurisdictions. No Party shall export or re-export any such items or any direct product thereof or undertake any transaction or service in violation of any such laws or regulations.
16.15 Third Party Beneficiaries. Except as expressly provided herein, this Agreement is entered into solely between, and may be enforced only by, Client and Consultant. This Agreement shall not be deemed to create any rights or causes of action in or on behalf of any third parties, including without limitation employees, suppliers and Clients of a Party, or to create any obligations of a Party to any such third parties. Client shall not be a party to this Agreement and may not enforce any obligations or liabilities of Client under this Agreement except through Client.
16.16 Ownership. Consultant retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Client agrees not to disclose such information to any third party without Consultant’s prior permission. This Agreement shall not be deemed to assign or transfer ownership by any Party of any Intellectual Property Rights existing as of the Effective Date.
16.17 Insurance. Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party.
16.18 Further Assurances. Each Party covenants and agrees that subsequent to the execution and delivery of this Agreement and without any additional consideration, each Party shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of this Agreement.
16.19 Acknowledgment. The Parties each acknowledge that the terms and conditions of this Agreement have been the subject of active and complete negotiations, and that such terms and conditions should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
16.20 Assignability. Neither party to this Agreement may assign all or any part of the party’s rights and obligations under the terms of this Agreement without the prior written consent of the other party. No assignment that is approved by the other party is to relieve the assignor of the assignor’s obligations under the terms of this Agreement if the assignee fails to perform those obligations.
16.21 Jurisdiction. The enforcement of this agreement shall be governed by and construed in accordance with the laws of the State of Missouri. Venue of any arbitration or litigation arising hereunder shall be St. Louis, MO.
17. ADDITIONAL TERMS; THIRD PARTY SERVICES
17.1 EULAs. Portions of the Services may require Client to accept the terms of one or more third party end user license agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to Client, then Client hereby grants Consultant permission to accept the EULA on Client’s behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, Consultant is required to comply with a third-party EULA and the third-party EULA is modified or amended, Consultant reserves the right to modify or amend any applicable SOW with Client to ensure Consultant’s continued compliance with the terms of the third-party EULA.
17.2 Third-Party Services. Portions of the Services may be acquired from, resold from, and/or rely upon the services of third-party vendors, manufacturers, or providers (each a “Third-Party Provider”). Third Party Providers may provide services such as data hosting services, support services, malware detection services, domain registration services, and data backup/recovery services (each a “Third-Party Service”). Not all Third-Party Services will be expressly identified as being provided by a Third-Party Provider and at all times Consultant reserves the right to utilize the services of any Third-Party Provider or to change Third Party Providers in Consultant’s sole discretion as long as the change does not materially diminish the Services that Consultant is obligated to provide to Client. Consultant understands and agrees that Third Party Providers are not Consultant’s contractors, subcontractors, or otherwise under Consultant’s managerial or operational control. While Consultant will endeavor to facilitate a workaround for the failure of a Third-Party Service, Consultant will not be responsible, and will be held harmless by Client, for any failure of any Third-Party Service as well as the failure of any Third-Party Provider to provide such services to Consultant or to Client.