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MASTER PROFESSIONAL SERVICES AGREEMENT
Article I – Service Order
1.1 SERVICE ORDER – CUSTOM CX PROGRAM. All work to be performed by the Company. The service order include, at a minimum, the scope of Services (as contemplated by Article II below) and Deliverables (if any, as contemplated by Article III below), the project/work schedule, and associated fees, and should also set out any estimates, assumptions, conditions, dependencies, phases/milestones, and completion criteria if and as applicable and material. A service order shall not be effective unless fully executed by duly authorized representatives of both Parties, and the Company shall not be obligated to perform any work until such time.
1.2 Adjustments. All statements and agreements concerning time, fees, and other expenses (including any fixed price or not-to-exceed quotations in the Service Order) are good faith estimates based upon information furnished by Client and circumstances existing at the time made. The Service Order is subject to equitable adjustment upon any material change in such information or circumstances, the occurrence of delays (as contemplated in Section 1.4 below), or upon modification of the scope, timing, or level of work to be performed by the Company. Client acknowledges that delays not attributable to the Company and/or any agreed change may affect project schedule and/or the fees and expenses payable to the Company.
1.3 Postponement. Client must provide the Company with advance written notice of at least fifteen (15) days if it expects or intends to postpone any work contemplated in the Service Order. Work may be also be postponed if any deposit contemplated by the Service Order is not paid by Client. All postponements shall constitute delays subject to Section 1.4 below and the Company may elect to invoice Client for anticipated resources at their thenprevailing rates for each day of delay (whether or not work is performed during the postponement).
1.4 Delays. The Company, or its subcontractors engaged to perform work hereunder, shall be excused from delays in performing or from a failure to perform the Agreement to the extent that such delays or failures result from causes beyond the Company’s (or its subcontractors’, as applicable), reasonable control. Without limiting the generality of the foregoing, Client acknowledges that Client’s failure or delay in furnishing necessary information, equipment, or access to facilities, delays or failure by Client in completing tasks required of Client or in otherwise performing Client’s obligations hereunder or under the Service Order, and any explicit assumption contained in the Service Order which is not met or is incorrect or otherwise fails to hold shall be considered an excusable delay or excusable failure to perform by the Company and may impede or delay completion of Services and/or result in additional fees and expenses chargeable to Client. In addition, if a project is delayed by an aggregate number of thirty (30) days or more through no fault of the Company, then the Company may elect to charge the Client a delay penalty in the amount of ten percent (10%) of the contemplated value of the applicable Service Order, or (ii) terminate work under the Service Order.
1.5 Change Requests. In the event that either the Client or the Company wishes to request a modification to the Service Order (including any scope, even if at no cost), Client or Company shall provide the other Party with written notice detailing the requested changes. The requesting Party shall then provide a written response estimating the impact, if any, that the requested modifications would have on the scope, schedule, fees, or other material terms in the Service Order. Either Party may also propose change requests on its own initiative. Neither Party shall be compelled to agree to change requests. If the Parties agree to a change request, then such agreement must be reflected in a written change order indicating an amendment to the Service Order. No changes to the Service Order shall be effective fully executed by duly authorized representatives of both Parties, and neither Party shall be obligated to modify or perform any additional work until such time. Both Parties shall continue performing services in accordance with the applicable Service Order unless and until the Parties agree in writing on the change in scope of work, scheduling, and fees therefore.
Article II – Services
2.1 Services. The Company shall render those professional services specified in the Service Order (“Services”). Services may also include the creation and/or delivery of Deliverables (as contemplated in Article III below).
2.2 Subcontractors. The Company shall have the option to subcontract to perform Services.
2.3 Services Warranty. Except as set forth in Article III below as to Deliverables or unless otherwise expressly sp
3. Article III – Deliverables
3.1 Deliverables. “Deliverables” mean any Client-specific deliverable (other than Furnished Products (as defined in Section 3.1 below)) provided by the Company as part of the Services and identified as a “Deliverable” in the Service Order.
3.2 Delivery. If a Deliverable is called for by the Service Order, then the Company shall perform its standard tests designed to check that the Deliverable substantially satisfies material requirements set forth in the Service Order. Upon completion of such tests, the Company shall deliver such Deliverable to Client for Client’s testing and acceptance.
3.3 Testing. If not specified in the Service Order, objective testing procedures and criteria (“Acceptance Testing”) shall be determined during the planning phase, business process review, or other documentation review phase of the project or, if no such phase or review occurs, by the Company in its discretion. Unless otherwise specified in the Service Order, Client shall have five business (5) days from its receipt of a Deliverable (the “Acceptance Period”) to perform Acceptance Testing. If a Deliverable fails Acceptance Testing or otherwise fails to meet a material requirement set forth in the Service Order, then Client shall notify the Company with sufficient details of the nature and specifics of the nonconformity to enable the Company to remedy any such nonconformity. Client acknowledges and agrees that photography, videography, imagery, logos, colors, themes, and icon choices, design layout, arrangements, and elements, and the like, are inherently subjective and impressions tend to vary by individual; accordingly, subjective disagreement or disapproval with elements of a subjective or artistic nature shall not be proper grounds for shall not be proper grounds for rejection of a Deliverable.
3.4 Acceptance; Remediation. If Client does not notify the Company of alleged nonconformance of the applicable Deliverable during the Acceptance Period, then such Deliverable shall be deemed accepted. If Client properly notifies the Company of nonconformance in accordance with Section 3.3 above, then the Company shall work to correct material nonconformities discovered during Acceptance Testing and resubmit to Client for re-testing within a reasonable period of time not to exceed twenty (20) days unless otherwise agreed by the Parties. Client shall then have an additional three (3) business days to re-perform Acceptance Testing and the Deliverable shall be deemed accepted unless Client provides further notice and particularity of continued nonconformance within such three-day period.
3.5 Deliverables Warranty. The Company warrants to Client (and only to Client) that Deliverables (but excluding all Client Materials (as defined in Section 5.2 below)) will perform in substantial compliance with the requirements set forth in the Service Order for a period of thirty (30) days (the “Original Warranty Period”) from the date of delivery. In the event of a breach of this warranty, the Company shall, at its option, exercise commercially reasonable efforts to repair or replace the defective Deliverable. Deliverables repaired or replaced by the Company shall have a warranty period until thirty (30) days from the date of redelivery or until the expiration of the Original Warranty Period, whichever is longer. This warranty is subject to Section 8.4 below and is also expressly conditioned upon (A) Client providing the Company with written notice of any claim, prior to the expiration of the applicable warranty period, with reasonable particularity as to the circumstances of the breach of warranty, (B) Client’s full cooperation with the Company in all reasonable respects relating thereto, and (C) with respect to any Deliverable, the absence of any alternation or other modification of such Deliverable by any person/entity other than the Company (other than modifications or alternations contemplated under the Service Order, if any). Notwithstanding any other provision in the Agreement otherwise to the contrary: (i) the Company does not warrant that the Company Materials (as defined in Section 5.4 below) or other items furnished by the Company in connection with the Agreement are or will be free from bugs, errors, defects, viruses, or deficiencies; and (ii) this Section 3.5 states the Company’s entire liability to Client and Client’s sole and exclusive remedy for any breach of warranty or nonconformance of Deliverables after acceptance.
3.6 Additional Warranty. The Company warrants to Client (and only to Client) that Deliverables (excluding Client Materials) shall not infringe any third-party copyright or trademark registered in the United States, or United States patent issued, before the effective date of this MPSA or misappropriate any third party’s trade secrets protected under United States law.
Article IV – Furnished Products and Third-Party Solutions
4.1 Furnished Products. “Furnished Products” mean products (including, without limitation, hardware and software) manufactured, created by, or otherwise sourced from third parties which are sold, provisioned, or otherwise furnished by the Company to Client in connection with the Service Order or otherwise pursuant to the Agreement.
4.2 Product Warranty. The Company makes no warranties with respect to Furnished Products. Warranties of Furnished Products shall be limited to those warranties, if any, offered by the manufacturer or creator of such Products and applicable to Client as an end user.
4.3 Third-Party Solutions. “Third-Party Solutions” mean third-party products, equipment, platforms, applications, services, or other solutions, whether at Client’s site or offsite, whether off-the-shelf or configured, customized, or modified, and whether procured independently by Client or as a Furnished Product, and whether or not recommended by the Company as part of the project or in the course of rendering Services. All product/services costs, licensing fees, and additional services required to purchase or license (other than Furnished Products), implement, utilize, or integrate with Third-Party Solutions are exclusive of the Service Order. Unless otherwise specified in the Service Order, neither vendor/solution research, diligence, and selection nor configuration, diagnosis, installation, troubleshooting, and interoperability functionality in respect of any Third-Party Solution is within the scope of Services, and if the Company elects to perform any such aforesaid work, then the Company may invoice Client at its then-prevailing rates for such work. The Company is not responsible for limitations of Third-Party Solutions which might affect the performance, scalability, or security of any Deliverable or ThirdParty Solution.
Article V – Ownership and Licensing
5.1 Ownership. As between the Parties and subject to the terms and conditions of the Agreement including, without limitation, the confidentiality provisions in Article VII below: (i) Client retains all right, title, interest, and ownership to and in and of the Client Materials; and (ii) the Company hereby retains all right, title, interest, and ownership and licenses, as applicable, to and in and of the Company Materials and the Deliverables (other than any of Client’s Confidential Information (as defined in Article VII) therein).
5.2 Client Materials License. Client grants to the Company a license to use, reproduce, and modify Client Materials solely for purposes of performing Services. “Client Materials” mean the Client-specific content or Confidential Information provided by Client to the Company for the purpose of the Service Order.
5.3 Deliverables License. Subject to the terms and conditions of the Agreement and Client’s compliance with same, including but not limited to Client’s fundamental obligation to pay the fees and expenses contemplated in Article VI below, the Company grants a perpetual, exclusive (except to the extent the Deliverables include Company Materials), worldwide, non-transferable, non-sublicensable, royalty-free license to use, reproduce, and modify the Deliverables solely for Client’s business uses only; provided, however, that this license does not permit use by or for any third party (other than Client’s customers, clients, or site visitors in the ordinary course of Client’s business).
5.4 Company Materials License. Subject to the terms and conditions of the Agreement and Client’s compliance with same, including but not limited to Client’s fundamental obligation to pay the fees and expenses contemplated in Article VI, the Company grants a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use, reproduce, and modify Company Materials solely as incorporated in Deliverables and then solely for Client’s business uses only; provided, however, that this license does not permit use by or for any third party (other than Client’s customers, clients, or site visitors in the ordinary course of Client’s business). “Company Materials” mean any and all intellectual property that: (i) is owned or held by the Company prior to the effective date of this MPSA; (ii) is developed by the Company after such effective date but separately from the Agreement; (iii) is licensed by the Company or from a third party; or (iv) comprise elements of the Deliverables that are of general applicability to the Company’s business without any of Client’s Confidential Information.
5.5 Competitive Materials. Except as set forth in the Agreement (including but not limited to the confidentiality provisions in Article VII), the Company shall not be precluded from developing materials outside the Agreement with other clients that are competitive with Client or Deliverables, irrespective of their similarity to materials which might be delivered to Client pursuant to the Agreement. Nothing in the Agreement shall be construed as precluding or limiting in any way the right of the Company to provide consulting, design, development, content production or editing, or other services of any kind of nature whatsoever to any individual or entity as the Company in its sole and absolute discretion deems desirable.
5.6 Residual Knowledge. Subject to the confidentiality provisions in Article VII, Client acknowledges that the Company and its employees and agents shall be free to use and employ their general skills, know-how, and expertise to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of rendering any Services.
Article VI – Fees and Invoicing
6.1 Fees. Fees for Services (and if applicable, Furnished Products) shall be set forth in the Service Order. Any work performed by the Company which is outside the scope of work in the Service Order and ordered by Client, or is performed by the Company due to a breach by Client or a postponement or delay or failure of an assumption or condition not due to the fault of the Company, shall be charged at the Company’s then-prevailing rates on a time-and-materials basis.
6.2 Expenses. Unless otherwise specified in the Service Order, Client shall be responsible for reimbursing the Company for travel, lodging, and other ancillary out-of-pocket expenses or items paid or incurred in performing Services; provided, however, that the Company shall obtain Client’s approval for any expenses which are not scheduled or otherwise contemplated in the Service Order.
6.3 Invoicing. Unless otherwise specified in the Service Order, the Company may invoice Client as often as every month. Notwithstanding Section 11.1 below, invoices may be transmitted by electronic mail.
6.4 Payments.
(a) General. Payments are due within ten (10) days from the date of invoice. Payments shall be made via wire or other electronic transfer of immediately available funds according to instructions on the invoice.
(b) Late Payments. In the event payment is not received within such ten-day period, the Company may charge a one-time late fee of five percent (5%) of the amount due, and also charge interest or additional late fees on amounts outstanding at the rate of one and one-quarter percent (1.25%) per month or the highest rate allowable by applicable law, whichever is less. If at any time and for any reason whatsoever, the fees/interest payable overdue payments shall exceed the maximum rate of interest permitted to be charged under applicable law, such fees/interest shall automatically be reduced to the maximum rate of interest permitted under applicable law. Interest shall never be greater than an amount which, if added to the amount of any late fees or charges paid by Client which constitutes interest under applicable law, would cause the total amount of interest to exceed the maximum rate of interest chargeable to Client under applicable law. The Company agrees to refund, and Client agrees to accept refund of, any and all sums received hereunder by the Company which are determined to be usurious by any court of competent jurisdiction.
(c) Disputes. If Client in good faith disputes any portion of any invoice, then Client shall timely submit payment to the Company for the undisputed portion of such invoice and promptly provide written documentation identifying the disputed portion and supporting Client’s position, and the Parties shall then exercise reasonable efforts to conference within ten (10) days in an attempt to identify and potentially resolve disagreements.
6.5 Non-Exclusive Remedies. If a payment not subject to good faith dispute is over seven (7) days late, or if a payment subject to good faith dispute is over fourteen (14) days late, then the Company, in its sole discretion and in addition to any other remedies available to it herein or otherwise under law, may: (i) withhold delivery of any Deliverables or other work; (ii) stop work and re-assign its personnel and other resources; (iii) initiate the dispute resolution process contemplated by Section 11.9 below; and/or (iv) take other action to collect payment as permitted by this Agreement and under applicable law. Client shall reimburse the Company for all of its costs and expenses (including reasonable attorneys’ fees) incurred in attempting to collect any amounts past due under the Agreement, and all costs associated with work stoppages for late payment shall be borne fully by Client. Nothing herein shall in any way limit or waive any remedies or relief (including, without limitation, injunctive relief) available under law to the Company.
6.6 Taxes. Client shall pay all taxes, assessments, and fees applicable in connection with the Services, whether national, federal, state, or local, including, without limitation, sales, use, value-add, excise, personal property, customs fees, import duties, stamp duties, and any other similar taxes and duties, however designated or levied; provided, however, the Company shall be responsible for its own taxes on net income. The Company shall invoice Client for any taxes properly payable by Client that are required to be collected by the Company pursuant to any applicable statute, rule, regulation, or other requirement of law.
Article VII – Restrictive Covenants
7.1 Confidentiality. Each Party (as applicable, a “Recipient”) agrees to retain in strict confidence any information provided to it by the other Party (as applicable, a “Discloser”) that is marked, labeled, or otherwise designated as confidential or proprietary or that Recipient knew, or reasonably should have known, was confidential due to the circumstances surrounding the disclosure by Discloser (“Confidential Information”). Confidential Information shall not include any information that (i) is generally known to the public at the time of disclosure, (ii) is received by Recipient without restriction from a third party without any breach by such third party of any confidentiality, fiduciary, or other obligation to the Discloser, (iii) is published or otherwise made known to the public by Discloser, or (iv) is generated independently by the Recipient without use of or reference to Discloser’s confidential information. Recipient shall use at least the same standard of care with Discloser’s Confidential Information as it does with its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose Confidential Information in order to respond to a valid order of a court or other governmental body or any political subdivision thereof, or as otherwise required by law, provided that the Recipient (A) informs Discloser as soon as reasonably practicable of the required disclosure, (B) limits the disclosure to the required purpose, and (C) at Discloser’s request and expense, assists in an attempt to object to or limit the required disclosure. Upon termination or expiration of the Agreement, or upon Discloser’s request, Recipient shall return or destroy all Confidential Information provided under the Agreement (except to the extent incorporated in a Deliverable). The Parties hereby agree and acknowledge that this Article VII supersedes any prior confidentiality agreements by and between the Parties with respect to Confidential Information disclosed after the effective date of this MPSA.
7.2 Non-Solicitation. Client covenants that during term of this MPSA and for a period of one (2) years thereafter Client will not, directly or indirectly, through a corporation or other entity, unincorporated business, affiliated party, successor or assign, or otherwise, solicit, hire for employment or engagement, or work with, on a full-time, part-time, consulting, advising, or any other basis, any person who is, or was within the prior twelve months, an employee, consultant, or subcontractor of the Company without prior written permission from the Company.
7.3 No Public Announcements. The existence, terms, subject matter, and performance of the business relationship between the Parties shall also remain confidential, and neither Party shall make any public announcement or comment or other communication to a third party pertaining to this MPSA, any Service Order, any of the Services/Deliverables, or otherwise regarding the relationship between the Parties without the express written permission of the other Party; except that, unless otherwise stated on a Service Order, (i) the Company may identify Client and disclose its relationship with Client for the Company’s marketing and promotional purposes, and (ii) the Company reserves the right to display all aspects of its creative work, including sketches, work-in-progress designs, and completed projects in its portfolio for marketing and promotional purposes.
Article VIII – Indemnification
8.1 Third-Party Claims. Subject to Sections 8.2 through 8.4 below, each Party (as applicable, an “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (as applicable, an “Indemnified Party”) from and against any and all claims, demands, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) that the Indemnified Party incurs as a result of any third-party claims (i) for bodily injury or property damage (real or personal) based on, arising out of, or resulting from the gross negligence or intentional misconduct of the Indemnifying Party (or its employees, subcontractors, assignees, or agents), or (ii) for infringement of intellectual property rights. The Indemnified Party shall (A) give the Indemnifying Party prompt written notice of the relevant claim, (B) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such claim, and (C) give the Indemnifying Party the right to control the defense and settlement of any such claim, except that the Indemnifying Party shall not enter into any settlement that materially affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval, which approval shall not be unreasonably withheld, conditioned, or delayed. If the Indemnifying Party duly and diligently defends a claim, then the Indemnified Party shall have the right to participate in the defense, such participation at the expense of the Indemnified Party (except as to expenses in connection with participation required by law or with cooperation requested by the Indemnifying Party, which shall be at the Indemnifying Party’s expense). If, however, the Indemnifying Party fails to duly and diligently defend or settle, as applicable, the claim, then the Indemnified Party may, upon written notice to the Indemnifying Party and at the Indemnifying Party’s expense, undertake the defense and/or settlement of the claim.
8.2 IP Remedy. Following notice of a claim arising from an alleged breach of Section 3.6 above, the Company, in its sole discretion and at its option, (i) procure for Client the right to continue to use the Deliverable, (ii) replace the Deliverable, or (iii) modify the Deliverable to avoid the alleged infringement. If the Company determines that it is not commercially reasonable to perform any of the aforesaid alternatives, then Client shall cease use of the allegedly infringing Deliverable and the Company shall refund a pro-rata portion of the fees paid for the infringing Deliverable amortized (without interest) over a three (3) year period. Notwithstanding any other provision in the Agreement otherwise to the contrary, the foregoing states the Company’s entire liability to Client and Client’s sole and exclusive remedy for any breach of Section 3.6.
8.3 Other Indemnification. Each Party shall indemnify and hold harmless the other Party from and against any and all claims, losses, costs, and expenses (including reasonable attorneys’ fees) that the Party indemnified hereunder incurs resulting to the extent of any breach by the Party indemnifying hereunder of a provision of Article V, Section 6.6, or Article VII above.
8.4 Exceptions. In no event shall the Company have any obligations under this Article VIII or any liability otherwise for any claim or action which is caused by or results from: (i) Client’s combination or use of a Deliverable with software, services, or products developed by Client or third parties, (ii) modification, damage, or misuse of a Deliverable by anyone other than the Company, (iii) Client’s continuing in allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) Client’s use of a Deliverable in a manner not in accordance with the Agreement, (v) Client’s failure to abide by all applicable export and/or technology transfer laws, rules, regulations, and orders that apply to a Deliverable, or (vi) Client’s use of a superseded or altered release of a Deliverable, if such claim would have been avoided by the use of a current release of a Deliverable that the Company has made available to Client at no additional cost.
Article IX – Disclaimer and Limitations
9.1 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS MPSA IN ARTICLE III ABOVE, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) BASED ON, ARISING OUT OF, RELATED TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (WHETHER OR NOT A PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER OR NOT ALLEGED TO ARISE BY STATUTE OR COMMON LAW OR OTHER LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING, AND WHETHER EXPRESS OR IMPLIED OR OTHERWISE. IN ADDITION, THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION BASED ON, ARISING OUT OF, RELATED TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT TO ANY PERSON OTHER THAN THE ORIGINAL CLIENT PARTY TO THE AGREEMENT.
9.2 Limitation of Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OTHERWISE TO THE CONTRARY, IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ANY OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST INCOME OR PROFITS OR BUSINESS INTERRUPTION OR LOST DATA OR RECORDS) OF ANY KIND BASED ON, ARISING OUT OF, RELATING TO, OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Limitation of Liability. OTHER THAN FOR LIABILITY ARISING PURSUANT TO BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN ARTICLE VII ABOVE, INDEMNIFICATION OBLIGATIONS SET FORTH IN ARTICLE VIII ABOVE, OR DAMAGES ARISING FROM THE COMPANY’S VIOLATION OR MISAPPROPRIATION OF CLIENT’S INTELLECTUAL PROPERTY RIGHTS UNDER UNITED STATES LAW, IN NO EVENT SHALL THE COMPANY’S CUMULATIVE LIABILITY WITH RESPECT ANY DISPUTE ARISING HEREUNDER OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THE AGREEMENT EXCEED THE AGGREGATE OF AMOUNTS ACTUALLY PAID UNDER THE APPLICABLE SERVICE ORDER.
9.4 Force Majeure. The Company shall not be liable for any delays or other nonperformance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war, insurrection, riot violence, or protest or disturbance, any law, order, or requirement of any governmental agency or authority, or any act or omission of employees or agents of Client. In this event and to the extent of any period of such delay, nonperformance shall not be deemed a breach of the Agreement by the Company and the project schedule and any milestone and due dates shall be adjusted and extended accordingly, and also subject to Section 1.4 above.
9.5 Acknowledgment. Client acknowledges that the Company is a corporation and that Client is contracting only with the Company as a distinct entity and not any individual stockholder, director, officer, employee, or other individual.
Article X – Term and Termination
10.1 Term and Renewal. The term of this MPSA shall commence on its effective date and, unless earlier terminated as permitted herein, shall continue for a period of one (1) year (the “Initial Term”). Unless either Party gives the other Party written notice of nonrenewal at least thirty (30) days prior to the expiration of the Initial Term, then effective upon the expiration of the Initial Term the term of this MPSA shall renew for additional one-year terms (each, a “Renewal Term”) until terminated as permitted herein or unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of such Renewal Term; provided that no expiration of this MPSA on account of non-renewal shall become effective, and the term of the MPSA shall be extended, until performance under the Service Order is concluded.
10.2 Termination for Cause. In the event that a material breach or material default by a Party occurs, then the non-defaulting Party shall provide written notice setting forth the details of the breach or default in reasonable detail (including, but not necessarily limited to, a description of the breach or default, a statement of the facts relating to the breach or default, the provisions of the Agreement that are in breach or default, and the action proposed to cure the breach or default). If the defaulting Party does not diligently commence curing the breach or remediating the default within thirty (30) days of delivery of notice, then the non-defaulting Party may terminate the Agreement immediately effective upon subsequent written notice to the other Party.
10.3 Termination for Convenience. Either Party may terminate this Agreement for any or no reason at all so long as they give the other Party at least fifteen (15) days’ notice of such termination. There shall be no penalties for any Party exercising this option to terminate for convenience so long as the fifteen (15) day notice is given.
10.4 Termination of a Service Order. In the event a Service Order is terminated by the Company pursuant to Section 1.4 or Section 10.2 above, in either case all prepaid amounts under such Service Order shall be non-refundable and Client must pay the Company for: (i) all invoices and all fees, charges, and expenses incurred through such date of termination (including for work in progress); (ii) all costs the Company incurred or incurs having anticipated performing Services (even if after the effective date of termination); and (iii) fees for work which the Company would have anticipated performing under the Service Order if completed in full (whether or not work is actually performed). Furthermore, the Company may also elect to terminate a Service Order if Client rejects a Deliverable after three attempts at delivery by the Company, in which case Client shall receive a refund for any fees paid for such Deliverable to the extent deficient.
10.5 Bankruptcy or Insolvency. Either Party may terminate the Agreement by giving the other Party written notice of termination if: (i) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (ii) the other Party makes a general assignment for the benefit of creditors; (iii) any proceedings are commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings have not been vacated or set aside within ninety (90) days from the date of commencement thereof; or (iv) any proceeding, plan, or other action for the bankruptcy, insolvency, dissolution, or liquidation of the other Party is filed, adopted, or commenced.
10.6 Survival. The defined terms and the rights and obligations set forth in the following sections of this MPSA shall survive any termination or expiration of the Agreement: Articles V through IX above, this Section 10.5, and Article XI below.
Article XI – Miscellaneous
11.1 Notices. Any notices required or authorized to be given pursuant to the Agreement must be in writing and shall be sent to the other Party at its address set forth in the Service Order or to such other address as such Party may from time to time specify in writing, and shall be deemed given: (i) if delivered personally, then when actually delivered; (ii) if delivered by overnight courier, then upon delivery as evidenced by ordinary course records of the courier; (iii) if delivered by certified or registered postal mail, return receipt requested, then upon verification of delivery; or (iv) if delivered by facsimile or other electronic transmission, then upon delivery if an invoice or otherwise upon acknowledgement of receipt.
11.2 Relationship of Parties. The Parties are independent contractors and the Agreement shall not be construed to create or evidence a partnership, joint venture, or franchise relationship between them. Neither Party shall have the authority to bind the other Party by or to any representation, warranty, promise, obligation, or agreement.
11.3 No Third-Party Beneficiaries. Nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person any rights or remedies under or by reason of the Agreement other than the Parties and their permitted assigns. No third-party beneficiaries are expected or intended.
11.4 Assignment. Neither Party may assign the Agreement in whole or in part without the other Party’s prior written consent except in the case of the sale or other transfer (whether direct or indirect, or by merger, operation of law, change of control, or otherwise) of all or substantially all of the assets or voting equity interests of a Party so long as the assignee agrees in writing to be bound by the terms of the Agreement. Any assignment contrary to this provision shall be void and of no effect.
11.5 Waiver. No course of conduct shall constitute a waiver of any terms or conditions of the Agreement, unless such waiver is specified in writing by the waiving Party, and then only to the extent so specified. A waiver of any of the terms and conditions of the Agreement on one occasion shall not constitute a waiver of the other terms of the Agreement, or of such terms and conditions on any other occasion.
11.6 Interpretation. The language used in the Agreement shall be deemed to be the language chosen by the Parties to express their collective mutual intent, and no rule of strict construction shall be applied against either of them. Each defined term used in the Agreement has a comparable meaning when used in its plural or singular form. Article and section headings are inserted for convenience of reference only and shall not affect the meaning or interpretation of the Agreement. In the event of conflicting terms between this MPSA and the Service Order, the terms of the Service Order shall control.
11.7 Severability. If any provision of this MPSA shall be declared by a court of competent jurisdiction to be illegal, void, or unenforceable, then all other provisions of the Agreement shall not be affected and shall remain in full force and effect.
11.8 Governing Law. All issues and questions concerning the construction, validity, enforcement and interpretation of the Agreement shall be governed by, and construed in accordance with, the laws of the state of Rhode Island without giving effect to any choice of law or conflict of law rules or provisions (whether of Rhode Island or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of Rhode Island.
11.9 Dispute Resolution.
(a) In General. The Parties must resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the termination or alleged breach or invalidity hereof (each, a “Dispute”), pursuant to the provisions in this Section 11.9; provided, however, that the commencement of the Dispute resolution process set forth in this Section 11.9 shall not prohibit a Party from simultaneously seeking an injunction or similar equitable relief in accordance with Section 11.11 below.
(b) Informal. The Parties must first attempt in good faith to resolve the Dispute by informal consultation and negotiation. Any Dispute which is not resolved through this process after a period of five (5) business days from an initial written notice of attempting to resolve such Dispute by negotiation and consultation from a Party (or such shorter period designated by a Party due to time constraints relevant to the specific Dispute), shall be resolved as described hereinbelow.
(c) In-Person. If the Dispute is not resolved pursuant to Section 11.9(b) hereinabove, then any Party may provide written notice to the other Party invoking additional Dispute resolution process and representatives of each Party with decision making authority shall meet (with counsel and other advisors, at their option) at a virtual location (Teams, Zoom, etc.) as designated by the Company, or other format if mutually agreed, within ten (10) business days after receipt of a written notice to discuss the areas of disagreement and to negotiate in good faith regarding possible solutions.
(d) Mediation. If the Dispute is not resolved pursuant to Section 11.9(c) hereinabove, then the Dispute shall be submitted to non-binding mediation. The Parties shall engage in the mediation process in good faith. The Company shall select the mediator, and the Parties shall engage in the mediation process in good faith. Each Party shall bear its own expenses to prepare for and attend mediation, except that the fees of the mediator shall be split between the Parties.
(e) Arbitration. If the Dispute is not resolved pursuant to Section 11.9(d) hereinabove, then the Dispute shall be resolved by binding arbitration in accordance with the then-governing rules of the American Arbitration Association at a location within, unless otherwise agreed by the Parties, the state of Rhode Island. This Arbitration shall be binding for both parties and shall be final.
(f) Litigation. No Party may institute any litigation in a court of law with respect to a Dispute other than (i) pursuant to Section 11.11 below, (ii) if the other Party to the Dispute refuses or fails to comply with the Dispute resolution process set forth hereinabove, or (iii) to enforce the binding decision of the arbitrator pursuant to Section 11.9(e) hereinabove.
11.10 Injunctive Relief. Each Party acknowledges and agrees that any violation of the provisions of Article V or Article VII of this Agreement by such Party will cause damage to the other Party in a fashion or amount with may be irreparable and will be difficult to ascertain. The Parties hereto therefore agree that in the event that any Party breaches, threatens to breach, or fails or refuses to perform any of its obligations under Article V or Article VII of this Agreement, the non-defaulting Party shall be entitled to, in addition to any remedies at law under this Agreement for damages or other equitable relief, specific performance of such covenant or agreement hereunder, including injunctive relief without the necessity of posting a bond.
11.11 Costs and Fees. In the event of a Dispute, the prevailing party shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with the arbitration or litigation of such Dispute, including any appeals therefrom; provided, however, that no party may receive reimbursement unless it complied with the dispute resolution process set forth in Section 11.9 above. For purposes of this Section 11.13, the determination of which party is to be considered the prevailing party and the allocation of costs shall be decided by the court of competent jurisdiction or independent party (i.e., mediator or arbitrator) that resolves such dispute, claim, or litigation.
11.12 Entire Agreement: Modifications. This MPSA and the Service Order represent the entire agreement between the Parties with respect to the subject matter hereof and thereof and supersedes any previous oral or written agreements or understandings regarding such subject matter. This MPSA may be amended or modified only by a written instrument signed by a duly authorized representative of each Party. For the avoidance of doubt, any conflicting provisions on a Client’s purchase order or other document (whether before or after the execution of this MPSA or a Service Order) shall be disregarded and shall not be deemed to have been accepted by the Company by performance or otherwise.
11.13 Manner of Execution. This MPSA shall be deemed agreed when a Service Order is fully executed by both Parties. Statements of Work may be executed in counterparts, each of which if so, executed shall be deemed an original and both of which together shall constitute one and the same instrument. Scanned images of signatures transmitted electronically (or other evidence of consent transmitted electronically) shall have the force and effect of original signatures.
THE PARTIES HERETO AGREE TO THIS MASTER PROFESSIONAL SERVICES AGREEMENT BY VIRTUE OF ENTERING INTO A SERVICE ORDER REFERENCING SAME