This Master Service Agreement is by and between Client (“Client”) and Innovative Data Consulting, Inc. dba InData (“InData” or “Service Provider”). Now, therefore, in consideration of the mutual promises set forth herein, the parties agree as follows:
1. RELATIONSHIP OF PARTIES
The relationship of the parties is that of independent contractors. No agency, partnership, joint venture, or employment relationship will be created or inferred by the existence or performance of this Agreement, and neither party will have any authority to bind the other in any respect whatsoever.
2. DESCRIPTION OF SERVICES
InData will provide to Customer the following services (collectively, the “Services”):
a. During the term hereof, Service Provider shall perform Services, which shall be subject to Clients written acceptance prior to starting Services.
b. The details of specific Services and rates will be described in a separate Scope of Work.
c. All work will be performed on a time and materials basis.
d. Work shall be performed by Service Providers employees or contractors who are skilled in the required work.
e. The performance of Service Provider may include Service Providers procurement of supplies and parts sufficient to ensure that the Operation of the Computer System. All procurement of hardware and software will be initiated by a Purchase Order from Client.
f. During the term hereof Client shall provide Service Provider with sufficient work space to perform Services. The parties agree that InData shall be an independent contractor and not an agent, employee or representative of Client. Client shall have no right to direct or control the details of the InData’s work. InData shall not receive any fringe benefits or other perquisites that Client may provide to its employees and InData agrees to be responsible for its own business overhead and costs of doing business and to furnish InData all tools and materials necessary to accomplish the services required of InData pursuant to this Agreement, and shall incur all expenses associated with performance, except as expressly provided in Exhibits or amendments to this Agreement.
This Agreement may be terminated by either party upon 30 days prior written notice to the other party. In the event of any termination/cancellation of this Agreement, Service Provider may:
a. Declare all amounts owed to it hereunder to be immediately due and payable;
b. Enter Client’s premises and repossess all supplies, spare parts and other items supplied by Service Provider hereunder for which payment has not been received by Service Provider; and
c. Cease performance of all Services hereunder without liability to Client.
If Customer needs to postpone performance of the Services, Customer shall provide prior written notice at least five (5) business days prior to the scheduled Services start date. If Customer gives InData less notice, then InData reserves the right to charge Customer a rescheduling fee equivalent to InData’s then-current standard one person-day Services rate for each person originally scheduled to perform Services, plus reasonable and actual expenses incurred for non-cancelable or non-refundable travel. If InData is unable to begin or complete the Services because Customer does not provide the prerequisite environment, information, materials, access or resources specified in the SOW, the engagement may convert to a time and materials engagement under the same terms described above provided the parties agree upon a change to the work and complete and execute a written change order prior to commencement of the changed work.
5. DATA BACKUP
Unless otherwise specified or Client has signed up for Backup as a Services (BaaS), InData is not responsible for providing IT related data backups of computers, mobile devices, storage, unless otherwise stated in the agreement. InData will assist in providing best effort to recover data at established hourly labor rates. InData highly encourages all Clients to understand the value of their business data and if warranted, sign up for Backup as a Service (BaaS) with InData. This is an optional service.
6. DISASTER RECOVERY AS A SERVICE
Unless otherwise specified or Client has not signed up for Disaster Recovery as a Services (DRaaS), InData is not responsible for providing IT related Disaster Recovery systems such as offsite or cloud-based systems. In the event of a disaster or catastrophic event such as fire, earthquake, flood, etc., resulting damage to Client’s network computers including servers, data storage, desktops, and laptops will not be covered under this agreement unless otherwise specified. InData will assist in providing best effort to recover data and moving it to a disaster recovery site if needed at established hourly labor rates. InData highly encourages all Clients to understand the cost of downtime and sign up for Disaster Recovery as a Service (DRaaS) with InData. This is an optional service.
7. COMMERCIAL SOFTWARE LICENSING
InData does not support unlicensed commercial software or end-of-life software. Client is required to keep an active support agreement with the manufacture of the software for security patches, bug fixes, and escalation support. The service level of the support agreement of the manufacture should mirror InData’s SLA. It should be either regular business hours or 24/7 depending on how critical the systems are to business operation.
8. OPEN SOURCE SOFTWARE LICENSING
InData does not support Open Source software for mission critical production business systems. Open Source software can be used in non-mission critical environments that will not directly impact productivity in the event any issues arise. InData will make a best effort to use community support methods and bill client on a time and materials basis at our standard hourly rates.
9. LIMITATION OF LIABILITY AND HOLD HARMLESS CLAUSE
Except for liability resulting from death or personal injury caused by its gross negligence or willful misconduct, or any other liability which cannot be excluded by law, IN NO EVENT SHALL INDATA BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, TO CUSTOMER OR ANY PERSON FOR (A) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, LOSS OF PROFITS, LOSS OF OR CORRUPTION TO DATA, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (B) ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSSES, EXPENSES OR COSTS OF ANY KIND, EVEN IF INDATA HAS BEEN ADVISED OF THEIR POSSIBILITY; ARISING DIRECTLY OR INDIRECTLY OUT OF THE AGREEMENT, OR THE PERFORMANCE, DEFECTIVE PERFORMANCE, NON-PERFORMANCE OR DELAYED PERFORMANCE BY INDATA OF ANY OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT.
10. INDEPENDENT DEVELOPMENT; RESIDUALS
The terms and conditions of this Agreement will not be interpreted or construed to limit InData’s right to independently develop or acquire products or services without the disclosure or use of Client’s Confidential Information or to use for any purpose anything related to InData products and services which may be retained by persons in their unaided memory who have had access to Client’s Confidential Information, but does not disclose or use Client’s Confidential Information.
11. OWNERSHIP OF INDATA TECHNOLOGY
InData has acquired, developed or otherwise obtained rights in and may, in connection with the performance of Services, solely or jointly with others, acquire, conceive, develop, enhance, or modify various concepts, ideas, methods, processes, procedures, know-how, and techniques (including, without limitation, models, designs, architectures, frameworks, patterns, structures, templates, components, objects, code, logic, routines, utilities, tools and software) pertaining to InData products and services (collectively, the “InData Technology”). The InData Technology as well as any intellectual property rights related thereto or based thereon (including, without limitation all patents, copyrights, trademarks or other proprietary rights based thereon) is the sole and exclusive property of InData.
InData, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of InData, or divulge, disclose, or communicate in any manner, any information that is proprietary to InData. InData and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement. Upon termination of this Agreement, InData will return to Client all records, notes, documentation and other items that were used, created, or controlled by InData during the term of this Agreement.
InData shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in InData’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to InData on similar projects. Service Provider warrants that the Services shall be of good quality and workmanship and in accordance with acceptable procedures for the Computer System, and that the Computer system will meet the specifications therefor. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, SERVICE PROVIDER DOES NOT WARRANT THE SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) TITLE; 8) MARKETABILITY; 9) PROFITABILITY; 10) SUITABILITY; AND/OR 11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have ten days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement. The liability of INDATA under this Agreement shall be limited to the amount paid to InData by Client, as outlined above under the “Limitation of Liability” section.
16. FORCE MAJEURE
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
18. NO SOLICITATION
During the term of this Agreement and for one (1) year following the termination of this Agreement, Client will not solicit, offer to employ, employ, or contract any employee, contractor, former employee (within the prior one (1) year), or former contractor (within the one (1) year) of InData, without (a) the prior written consent of InData or (b) paying InData one hundred percent (100%) of employee’s annual salary or contractor’s fees with Client for one (1) year (“Placement Fee”). Placement Fees will be paid to InData within thirty (30) days from the first date of employment or contract, unless otherwise agreed upon in writing by InData. Placement Fees for which payment is not received by InData when due will accrue a late charge of one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This Agreement may be modified by mutual written agreement of the parties.
22. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of California. Venue shall be in Los Angeles County.
Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
For purposes of this Agreement, the following definitions shall apply:
a. “Computer System” shall mean the Computer equipment, including both hardware and software that belong to Client in the operation of their business.
b. “Services” shall mean the Operation, Maintenance and Management of the Computer System, specifically defined in Description of Services.
c. “Operation” shall mean the operation of the Computer System, including, but not limited to manipulation and computation of data by the Computer System, the outputting of such manipulated and computed data by the Computer System, and communication between elements of the Computer System.
d. “Maintenance” shall mean remedial maintenance and preventive maintenance of the Computer System.
e. “Management” shall mean the scheduling of the use of the Computer System, procurement of supplies and spare parts therefor, and recommendation of changes and additions thereto.
f. “Normal Business Hours” shall be defined as Monday thru Friday from 9:00 am to 6:00 pm Pacific, excluding holidays.
25. WAIVER OF CONTRACTUAL RIGHT
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
26. COMPLIANCE WITH LAWS
Each party agrees to comply with all applicable laws, rule and regulations in connection with its activities under this Agreement, including without limitation the applicable regulations of the U.S. Department of Commerce and the United States Export Administration Act, as amended to assure that Software and Hardware are not exported in violation of the United States laws.
InData hereby discloses to Client and Client hereby acknowledges such disclosure that InData has relationships with various companies that provide products and services related to Client products and services that InData may recommend to Client and for which InData may receive compensation.
Client hereby agrees to permit InData to publicly disclose the existence and nature of the business relationship with Client.
The headings of the articles and sections of this Agreement are included for convenience only, and will not affect the construction or interpretation of its provisions.
This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. This Agreement may be executed by facsimile signature and facsimile signatures will be fully binding and effective for all purposes and will be given the same effect as original signatures.
InData will invoice the Client directly for Services provided in accordance to the specific Scope of Work. Client agrees to pay InData the amounts due as indicated by statements submitted by InData Due Upon Receipt. InData reserves the right to stop all work until the client’s account is brought current in the event that any Client invoice is more than ten (10) days past due. Client shall be responsible for any and all collection costs incurred by InData due to Client’s non-payment or late payment of fees and other costs enumerated herein. Such collection costs may include but are not limited to, attorney fees and court costs.