Master Services Agreement
TWE and Client may each be referred to herein as a ‘party’ or collectively, as the ‘parties.’
RECITALS
WHEREAS, TWE is engaged in the business of providing certain technology-related consulting services (“Services”) and the resale of certain third-party technology-related software and hardware products (“Products”).
WHEREAS, Client wishes to retain TWE to provide Services to Client pursuant to a mutually executed Scope of Work, in substantially the same form as Exhibit A hereto (“SOW”) and/or Products being resold to Client by TWE in a mutually executed order form, in substantially the same form as Exhibit B hereto (“Order Form”). To the extent that Client is a ‘business’ under the California Consumer Privacy Act (as amended) or this Agreement is otherwise subject to other applicable data privacy laws, the Data Privacy Addendum (“DPA”) executed concurrently herewith shall govern the processing of personal information/personal data and shall be subject to the terms of this Agreement.
WHEREAS, the purpose of this Agreement, which includes any SOWs, Order Forms, addenda, exhibits, appendices, attachments or other supporting documents specifically referencing or attached to this Agreement at the time of execution or as amended in writing thereafter, is to provide a single contract under which Client may procure Services and/or Products from TWE. The parties may mutually agree to execute additional Order Forms for particular Products being resold to Client by TWE or additional SOWs for particular Services at any time and the same will be governed by this Agreement. To the extent that any Order Form or SOW terms contradict terms in the Agreement, the Order Form or SOW terms shall take precedence, but only with respect to that particular Order Form or SOW. If a DPA is applicable, such DPA shall take precedence, but solely with respect to the subject matter therein.
NOW, THEREFORE, TWE and Client agree as follows:
- Scope of Services, Usage Restrictions, Client Responsibilities
(a) Scope of Services. TWE will provide personnel (the “Consultant(s)”) to perform the Services described in the SOW and shall take commercially reasonable efforts to do so in accordance with the completion times set forth therein. TWE may also resell Products as described in a mutually executed Order Form during the Term (as defined below) of this Agreement.
(b) Usage Restrictions; Product-Specific Terms. Client hereby agrees to solely use Services and Products for its own internal business purposes, subject to this Agreement and any applicable SOW and/or Order Form, which are attached hereto, or which may later be executed, and are hereby incorporated by reference. Client further agrees to abide by any Product-specific terms which are agreed to by Client either: (a) in a mutually executed Order Form with TWE; (b) directly with the manufacturer of hardware (each a “Manufacturer”) via product insert, click-through or any other mechanism; or (c) directly with a provider of software, hosting, infrastructure, or similar (each a “Provider”), whether provided to Client by hyperlink reference, click-through, or any other mechanism (any of which shall be referenced as “Product-Specific Terms”). The Product-Specific Terms are hereby incorporated by reference as though fully set forth herein. To the extent that any Product-Specific Terms contradict terms in the Agreement, the Product-Specific Terms shall take precedence, but only with respect to that particular Product.
Client will not, and will not allow any employees, contractors, agents, or third parties under its control to copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of any of the Services or Products.
(c) Additional Client Responsibilities.
Client’s Obligations with Respect to the Services. In addition to payment obligations set forth herein or in an SOW or Order Form, Client hereby acknowledges and agrees to:
- If applicable, provide a safe working environment for TWE and the Consultants while they are on site at Client’s location(s).
- Provide a primary point of contact through whom TWE will communicate decisions and who will have the authority to make decisions related to the Services/Products on behalf of Client.
- Provide sufficient and timely access to Client’s facilities, network, equipment and hardware, software applications, and environment, as well as to any employees or contractors that have technical information, passwords, or other information needed by TWE to provide the Services/Products, as well as skilled and knowledgeable Client personnel to assist in performing any joint efforts.
- Abide by all usage restrictions and not deploy more than the number of licenses Client has purchased for any software Product, and not use any pirated, not genuine, or unlicensed Product. TWE will have the right to refuse to provide any Services with respect to pirated, unlicensed, not genuine, or wrongfully obtained Product used by Client.
- Remain current with technical support agreements, maintenance agreements, and manufacturer extended warranties for all components of Client’s IT infrastructure.
- Ensure that all communications with TWE are timely and are directed only to the Help Desk telephone number, support email address, or, if made available by TWE, the web portal TWE provides to Client as well as Client’s dedicated TWE Account Manager. Client expressly acknowledges that delays by Client may impact TWE’s ability to provide timely Services.
- Price and Payment Terms
- Payment Terms. Client hereby agrees to pay TWE for the Services as set forth in one or more SOWs or Products as set forth in one or more Order Forms. TWE shall invoice Client monthly in arrears for Services rendered and shall invoice for Products as specified in the applicable Order Form (or within a commercially reasonable time if not specified therein). Invoices shall be payable in full within thirty (30) days from the date of the invoice, without withholding, deduction, or offset of any amounts for any purpose. Any portion of any fee or other amount payable hereunder that is not paid within thirty (30) days when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Client is responsible for all reasonable expenses (including attorneys’ fees) incurred by TWE in collecting unpaid or overdue amounts, and shall indemnify, defend, and hold harmless TWE for any third-party claims, in connection with Products ordered or otherwise related to Client’s failure to make timely payments pursuant to this Agreement or any SOW or Order Form. With respect to any invoiced amounts which Client reasonably disputes, Client shall notify TWE within thirty (30) days of the date of applicable invoice and shall timely pay all amounts not in dispute. TWE shall promptly investigate any such notice and the parties shall cooperate in good faith to resolve such dispute.
- Client will reimburse TWE for all reasonable out-of-pocket expenses incurred by TWE in connection with the Agreement including, without limitation, the cost of any goods/Products procured on behalf of Client, postage, shipping, travel, lodging, and any expenses reasonably incurred by TWE in providing the Services. Company will include all such expenses on its monthly invoices to Client after it incurs such expenses.
- The fees specified in this Agreement (or any SOW or Order Form) do not include taxes, duties, or other fees. Client shall pay for any sales, use, property, value-added, withholding, and any other taxes based on Client’s purchase of the Services or Products provided under this Agreement. Client shall be responsible for payment of all applicable taxes in connection with its purchases hereunder, other than taxes based on Company’s income or payroll taxes.
- Relation of Parties
- All Consultants are employees or contractors of TWE, and TWE retains all responsibility related thereto, including but not limited to: for its employees, withholding and payment of any applicable local, state or federal taxes, and payment for Worker’s Compensation protection. TWE will indemnify, defend, and hold harmless Client against any claims made or brought by such Consultants, government or taxing authority relating to such payments or withholdings.
- The performance by TWE of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein shall create or imply an agency relationship between TWE and Client, nor will this Agreement be deemed to constitute a joint venture of partnership between the parties.\
- Each party will be solely responsible for obtaining and paying for all of its own insurance.
- Neither TWE nor any Consultant will have any right to any pension or welfare plans, including, without limitation, savings, retirement, medical, dental, insurance or vacation plans sponsored by the Client.
- Term and Termination
(a) Term. This Agreement shall commence upon the Effective Date and shall continue in effect until termination pursuant to the terms herein (“Term”).
(b) Termination. Either party may terminate this Agreement for any or no reason upon thirty (30) days’ written notice to the other party. Either party may terminate this agreement in the case of the other party’s material breach, provided, however, that the terminating party has given the breaching party at least thirty (30) days’ written notice of, and the opportunity to cure, the breach. Client agrees to pay TWE for all the Services performed and Products ordered up to and including the date of termination. Termination for breach will not preclude the terminating party from exercising any other remedies for breach. In the event of Client’s termination for TWE’s failure to provide Services pursuant to an applicable SOW which TWE has failed to correct after receiving notice pursuant to Section 9 herein, Client shall pay TWE for all Services performed in compliance with the applicable SOW (but shall not be responsible for payment attributable to the non-conforming Services) and for all Products ordered prior to such termination (and subsequent to termination, if the applicable Order Form so provides). To the extent that any SOW or Order Form contemplates a term which is longer than or extends the Term of this Agreement, this Agreement shall automatically be extended and shall govern such SOW or Order Form.
- Intellectual Property Rights
- Each party owns and shall maintain ownership in and to all of its pre-existing Intellectual Property Rights, including TWE in and to all of TWE’s methodology, templates, and industry knowledge. Services performed by TWE pursuant to an SOW may include certain deliverables specifically identified in such SOW (“Deliverables”). To the extent Deliverables include copyrightable material, TWE hereby grants Client a worldwide, paid-up (subject to payment obligations made pursuant to this Agreement and the applicable SOW), non-exclusive, non-transferable, perpetual (unless otherwise specified in the applicable SOW) license to use the applicable Deliverable, solely for Client’s internal business purposes. TWE owns and will retain ownership (including all Intellectual Property Rights) in and to all Deliverables (excluding any Client materials or Client Confidential Information) and any modifications, improvements, and derivative works thereof (including any such materials to the extent incorporating any feedback Client may voluntarily offer). “Intellectual Property Rights” means all applications for and issued copyrights, trademarks, trade secrets, trade dress, and patents, and substitutions, divisions, continuations, continuations-in-part, reissues, reexaminations and extensions thereof and supplemental protection certificates relating thereto, and all counterparts thereof in any country in the world.
- Client shall obtain the rights to use or own the Products licensed or purchased in connection with this Agreement, solely pursuant to this Agreement, any applicable Order Form, and associated Product-Specific Terms.
- License Grants/Approvals. Subject to the terms and conditions of this Agreement, Client hereby grants to TWE an irrevocable, worldwide, non-exclusive, royalty-free, fully-paid right and license to use any Client Intellectual Property Rights or information, including Client Confidential information, for the purpose of providing Services or Products under this Agreement. Client further acknowledges that TWE may be required (pursuant to an applicable reseller, distributor, or similar agreement) by a Manufacturer or Provider to provide certain Client information (which may include Client Confidential Information and information which may be reasonably connected with a particular individual employee/contact of Client’s) to the applicable Manufacturer or Provider in connection with such re-sale and Client hereby consents to the same.
- Confidential Information
- Each party acknowledges and agrees that any and all proprietary or confidential information labelled as “confidential” or which a reasonable person would know constitutes proprietary information, including but not limited to, business plans, financial reports, customer and partner lists, business processes, templates, methodology, product development and marketing plans emanating from the other party’s business in any form shall be “Confidential Information.” Each party (in its capacity as a receiving party, a “Receiving Party”) agrees that it will not, during or after the Term of this Agreement, permit the duplication, use, or disclosure of any such Confidential Information of the party disclosing such Confidential Information (in such capacity, a “Disclosing Party”) to any person or entity (other than an employee, agent or representative of the Receiving Party under obligations of confidentiality no less protective than those contained herein, and solely in connection with the performance of the Receiving Party’s obligations or exercise of its rights hereunder), unless such duplication, use or disclosure is specifically authorized by the Disclosing Party in writing.
- The Receiving Party shall use commercially reasonable efforts to prevent the unauthorized use, disclosure, or access to the Disclosing Party’s Confidential Information by unauthorized third parties, in no event less that the Receiving Party uses for its own proprietary or confidential information of a similar nature. Confidential Information shall not include any information which: (a) is independently developed by the Receiving Party, without use of or reference to Disclosing Party’s Confidential Information; (b) lawfully becomes a part of the public domain through no fault, action, or omission of the Receiving Party; or (c) the Receiving Party gained knowledge or possession of free from any restrictions on its use.
- The Receiving Party shall not be in breach of this Section by disclosing Confidential Information to the extent such party is required to disclose by laws or regulations or upon lawful request of any governmental or court authority. The Receiving Party required to disclose Confidential Information in these circumstances shall give the Disclosing Party as much prior written notice of the disclosure as possible, if permitted, to allow the Disclosing Party an opportunity to take such steps as are available to it to control or prevent the disclosure.
- The obligations in this Section shall survive for five (5) years from termination of this Agreement.
- Data Privacy and Security.
If applicable and required by law, the parties each hereby agree to enter into TWE’s Data Processing Addendum.
- Warranty and Disclaimer
TWE warrants that the Services will be provided in a workmanlike and professional manner. THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER TWE WARRANTIES RELATED OR PERTAINING TO THE SERVICES OR PRODUCTS, WHETHER EXPRESS OR IMPLIED AND TWE HEREBY DISCLAIMS ANY CONDITIONS, WARRANTIES, OR OTHER COMMITMENTS, INCLUDING AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
- Limitations of Remedies
Subject to Client’s termination right at Section 4 herein, Client’s sole and exclusive remedy of any claim against TWE with respect to the quality of the Services will be the correction by TWE of any material defects or deficiencies therein, of which Client notifies TWE in writing within thirty (30) days after the completion of the applicable Services. In the absence of any such timely notice, the Services will be deemed to be accepted by and satisfactory to Client.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY CONTAINED HEREIN, CLIENT SHALL DIRECT ALL PRODUCT-SPECIFIC WARRANTY, INDEMNITY, SERVICES LEVEL AGREEMENT ISSUES, SUPPORT-RELATED REQUESTS, OR OTHER PRODUCT-RELATED RECOURSE DIRECTLY TO THE APPLICABLE MANUFACTURER OR PROVIDER, SUBJECT TO ANY LIMITATIONS IN THE APPLICABLE PRODUCT-SPECIFIC TERMS. CLIENT AGREES THAT IT SHALL NOT SEEK ANY REMEDIES AGAINST TWE WITH RESPECT TO DEFICIENCIES OR INAPPROPRIATENESS OF SUCH THIRD-PARTY PRODUCTS. TWE may, be shall not be required to, provide commercially reasonable assistance to Client in facilitating any Product-specific claim that it may have.
THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT TWE WILL BE RELYING ON REPRESENTATIONS AND WARRANTIES MADE BY APPLICABLE MANUFACTURERS AND PROVIDERS AND CLIENT AGREES TO BE SOLELY RESPONSIBLE FOR ITS SELECTIONS OF WHICH PRODUCTS IT ELECTS TO PURCHASE THROUGH TWE.
Client acknowledges that any Product availability or functionality associated therewith is subject to the provision of the same from the applicable Manufacturer or Provider, and that TWE shall not be liable for any lack of Product availability, decreases in functionality, or any other Product-related claim that is out of its reasonable control.
- Limitation of Liability
EXCEPT FOR TWE’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN OR TWE’S GROSS NEGLIGENCE/INTENTIONAL MISCONDUCT (EACH, TO THE EXTENT THAT DIRECT DAMAGES ARE CATEGORIZED AS INDIRECT DAMAGES), IN NO EVENT WILL TWE BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUE BY CLIENT, OR FOR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT OF ECONOMIC DAMAGES INCURRED OR SUFFERED BY CLIENT ARISING AS A RESULT OF OR RELATED TO THE SERVICES OR PRODUCTS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
EXCEPT FOR TWE’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN OR TWE’S GROSS NEGLIGENCE/INTENTIONAL MISCONDUCT (EACH, TO THE EXTENT THAT DIRECT DAMAGES ARE CATEGORIZED AS INDIRECT DAMAGES), THE TOTAL LIABILITY OF TWE FOR ALL CLAIMS OF ANY KIND ARISING, AS A RESULT OF, OR IN ANY WAY RELATED TO THIS AGREEMENT, OR TO ANY ACT OR OMISSION OF TWE, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED: (A) AN AMOUNT EQUAL TO THE AMOUNT ACTUALLY PAID BY CLIENT TO TWE FOR ALL SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM ARISES, IF SUCH CLAIM IS RELATED TO SERVICES PERFORMED BY TWE OR NOT IN CONNECTION WITH PRODUCT-SPECIFIC CLAIMS; OR (B) AN AMOUNT EQUAL TO THE AMOUNT RETAINED BY TWE (PROFIT AFTER PAYING THE APPLICABLE MANUFACTURER) FOR THE APPLICABLE PRODUCT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM ARISES, IF SUCH CLAIM IS RELATED TO A PRODUCT.
- Indemnification.
CLIENT WILL INDEMNIFY, DEFEND, AND HOLD TWE HARMLESS AGAINST ANY CLAIM BY THIRD PARTIES, INCLUDING ALL COSTS, EXPENSES AND ATTORNEYS’ FEES INCURRED BY TWE THEREIN, ARISING OUT OF OR IN CONNECTION WITH: (A) CLIENT’S MATERIAL BREACH OF THIS AGREEMENT; (B) CLIENT’S FAILURE TO ABIDE BY APPLICABLE LAWS (INCLUDING ANY DATA PRIVACY RELATED LAWS) OR INDUSTRY-SPECIFIC GUIDELINES; OR (C) CLIENT’S FAILURE TO ABIDE BY ANY PRODUCT-SPECIFIC TERMS, INCLUDING ANY DATA PRIVACY RELATED TERMS AND CLIENT’S OBLIGATIONS WITH RESPECT TO CONSENTS OBTAINED IN CONNECTION WITH ANY DATA PROCESSING ACTIVITIES OF ANY PROVIDER IN CONNECTION WITH THIS AGREEMENT.
In the event of any indemnification obligation pursuant to this Agreement, the indemnified party shall give prompt notice of any claim received to the indemnifying party. The indemnifying party shall control the defense of such claim, subject to obtaining written consent for any settlement requiring payment or other adverse impact upon the indemnified party.
- Non-Solicitation
To the extent legally permissible, during the period of this agreement and for twelve (12) months thereafter, neither party shall directly or indirectly solicit any employee, contractor, or agent of the other who has performed in connection with this Agreement.
- Governing Law and Dispute Resolution
This Agreement will be construed in accordance with, and all claims relating to or arising out of this Agreement, or breach thereof, whether in contract, tort, or otherwise, shall be governed by the laws of the state of California, without giving effect to any choice of law principles. Both parties agree to exclude the United Nations Convention on Contracts for the International Sale of Goods from the transactions contemplated under this Agreement. The parties hereby agree that any dispute, controversy, legal action, suit, proceeding and/or claim arising from or relating to this Agreement (including any Statement of Work or Order Form) or the transactions contemplated under it shall be brought exclusively in the state courts in Los Angeles County, California or in federal court in the Central District of California. The parties hereby consent and submit to the exclusive jurisdiction of such courts. Each party hereto waives any objection based on forum non-conveniens and waives any objection to venue of any action instituted hereunder. Each party irrevocably consents to personal jurisdiction and venue exclusively in, and agrees to service of process issued or authorized by, any such courts. Except for indemnification claims set forth herein, prior to bringing any legal action or claim hereunder, the parties shall each use commercially reasonable efforts to resolve any dispute by escalating such matter to its appropriate management or officer-level personnel.
Except for a Party’s enforcement of its intellectual property rights or a collection claim for money owed to TWE as set forth herein, any claim brought in connection with this Agreement shall be brought within one (1) year from the acts or omissions giving rise to the claim.
- Attorneys’ Fees
If any litigation is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.
- Severability
If any term of this Agreement is found to be unenforceable or contrary to law, it shall be modified to the least extent necessary to make it enforceable, and the remailing portions of this Agreement will remain in full force and effect.
- Force Majeure
Except for the obligation to pay all fees due and payable under this Agreement, each party will be excused from performance for any period during which, and to the extent that it is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics/pandemics, communication line failures, failure or unavailability of software and/or equipment, and power failures. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than ninety (90) days, either party may cancel unperformed services upon written notice to the other party.
- No Waiver
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
- Entire Agreement
This Agreement, together with all SOWs and Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, proposals, negotiations, representations, or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement, as well as any SOW or Order Form, will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this Agreement or any SOW or Order Form in construing or interpreting any of the provisions thereof.
- Notices
- To Client: Unless expressly stated otherwise in this Agreement, in the event that TWE is required or desires to provide Client with notice under this Agreement, it will provide electronic notice to the e-mail address set forth on the Cover Pager of this Agreement or as later specified by Client in writing. Client agrees to electronic delivery of all required notifications including invoices, unless otherwise provided for herein.
- To TWE: In the event that Client is required or desires to provide TWE with notice, all correspondence must be in writing and sent: i) via email to the email provided on the Cover Page; and (ii) with a copy sent via certified mail, return receipt requested, or overnight courier service, to the following address or as otherwise may be provided in writing to Client:
Michelle Kiely
TWE Solutions, Inc.
578 Washington Blvd. #214
Marina Del Rey, CA 90292