MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is made and entered into as of the Statement of Work Effective Date of the first Statement of Work executed between PeakPortal Software, Inc. (“PeakPortal”) and the Customer, described in such Statement of Work (“Customer” or "Client"). CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM OR APPLICABLE STATEMENT OF WORK, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY SERVICES OF PEAKPORTAL. BY (AS APPLICABLE) SIGNING A STATEMENT OF WORK, CLICKING “ACCEPT” AND/OR ENGAGING IN SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, PEAKPORTAL’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE PROFESSIONAL SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S ASSENT HERETO. The terms and conditions of this Agreement shall govern the Professional Services to be provided by PeakPortal under any Statement of Work by and between Customer and PeakPortal, as though the provisions of this Agreement were set forth in their entirety within such Statement of Work, and so that each Statement of Work and this Agreement shall be considered one, fully integrated document and agreement. The term “PeakPortal” shall include any third parties which are providing third party Professional Services identified in an applicable Statement of Work.
1. SERVICES; FEES.
1.1 PeakPortal agrees to provide to Client the services indicated and specifically described on one or more attached Statements of Work (the “Services”), and Client agrees to pay to PeakPortal the Service fees set forth on the applicable Statement of Work: Consulting Services, Product Implementation Services, Training Services, Data Conversion Services, Support and Maintenance Services, and/or other services as designed.
A Statement of Work must be separately executed by both Parties, and the Effective Date of a Statement of Work is the date on which it is fully executed.
1.2 If either Party wishes to change the scope or performance terms of the Services after a Statement of Work has been executed, it shall submit details of the requested change to the other in writing. Promptly after such request, the Parties shall work together to provide a written estimate for the request of: (a) the likely time required to implement the change; (b) any necessary variations to the fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of the applicable Statement of Work and this Agreement (a “Change Order”). Neither Party shall be bound by any Change Order unless mutually agreed in writing and accompanied by the signature of an individual authorized to make such changes on behalf of each Party.
1.3 The Parties may add additional Statements of Work to this Agreement from time to time by mutual agreement and any such additional Statements of Work will be effective when mutually agreed in writing and accompanied by the signature of an individual authorized to make such new Statement of Work on behalf of each Party.
2. PAYMENT TERMS.
2.1 Payments of all amounts due under any Statement of Work are due net fifteen (15) days from the date of PeakPortal’s invoice. All payments hereunder shall be in U.S. dollars and made by check or wire transfer. Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. If any such amount is not paid when due, Client agrees to pay any collection costs incurred by PeakPortal, including reasonable attorneys’ fees, incurred by PeakPortal.
2.2 Unless otherwise set forth in the applicable Statement of Work, fifty percent (50%) of the total estimated fees (the “Initial Retainer”) are due and payable upon execution of the Statement of Work. The remaining fees for completion of the Statement of Work (the “Remainder”) will be billed semi-monthly as incurred once the Initial Retainer has been exhausted. The Initial Retainer is non-refundable and once paid, will not be returned to Client, except in accordance with Sections 9.1(b) and 10.4.
2.3 If the project timeline extends beyond sixty (60) days from Statement of Work’s Effective Date due to Client-induced delays, the Remainder will be due in full immediately upon receipt of PeakPortal’s invoice.
2.4 Client shall be responsible for all sales, use, excise, personal property, and any other taxes imposed by any foreign, federal, state or local governmental entity, excluding foreign, U.S. or state taxes based on PeakPortal’s income. If PeakPortal has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Client unless Client provides PeakPortal with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.1 Personnel. PeakPortal may enter into agreements with or otherwise engage any person, including employees and subcontractors, to provide any Services and Deliverables to Client (each such person providing Services to Client is “Personnel”). PeakPortal will use commercially reasonable efforts to staff the Services with Personnel who have sufficient skill, experience and training to perform the Services in accordance with this Agreement and any applicable Statement of Work.
3.2 Key Personnel. “Key Personnel” means Personnel determined by Client to be critical to the performance of the Services and identified by name in a Statement of Work. PeakPortal will assign the Key Personnel to perform the Services and will not remove them from a project, or substantially reduce their participation in the project, without Client’s prior written consent. PeakPortal will use all reasonable efforts to ensure that Key Personnel are available to perform additional Services for Client (e.g., Services under subsequent Statements of Work) when requested by Client.
3.3 Responsibility for PeakPortal’s Personnel. PeakPortal is fully responsible for the performance of its Personnel and for their compliance with all of the terms and conditions of this Agreement while such Personnel are engaged or employed by PeakPortal. PeakPortal is solely responsible for the hiring, discipline and compensation of Personnel who provide the Services.
4. CLIENT’S OBLIGATIONS. Client shall:
4.1 cooperate with PeakPortal in all matters relating to the Services;
4.2 respond promptly to any PeakPortal request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for PeakPortal to perform Services in accordance with the requirements of a Statement of Work and this Agreement; and
4.3 provide PeakPortal with reasonable access to Client’s facilities, systems, and tools as reasonably requested by PeakPortal.
5. INTELLECTUAL PROPERTY. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, trade secrets, know-how and other confidential information, derivative works and all other proprietary rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of PeakPortal in the course of performing the Services (collectively, the “Deliverables”), shall be owned by PeakPortal, except for any Confidential Information (defined below) of Client or Client materials. Subject to Section 10.4, PeakPortal hereby grants Client a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual license to use all Intellectual Property Rights to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
6. WARRANTIES; DISCLAIMER.
6.1 Mutual Warranties. Each Party represents and warrants to the other Party that (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering and (ii) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder.
6.2 PeakPortal Warranties. PeakPortal represents and warrants to Client that:
(a) it will perform the Services in a competent and workmanlike manner in accordance with industry standards;
(b) if third-party materials are included in any Deliverable, PeakPortal has all necessary rights to use and furnish such materials to Client for the use specified in the applicable Statement of Work;
(c) when used according to PeakPortal instructions, the Services and the Deliverables do not infringe any trademark or copyright of a third party; and
(d) the Services and Deliverables will conform to the specifications in the Statement of Work for sixty (60) days from the date of delivery. If any of the Deliverables do not conform to the Statement of Work, Client may require that PeakPortal immediately re-perform the Services so that the Deliverables conform to the Statement of Work at no additional cost. If after such re-performance, the Deliverables still do not conform to the Statement of Work, the Client may terminate this Agreement, and PeakPortal will refund all amounts paid by Client with respect to and to the extent of such non-conforming Deliverables. THIS IS CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR A VIOLATION OF PEAKPORTAL’S WARRANTY IN THIS SECTION 6.2(d).
6.3 Limitations. EXCEPT FOR THE WARRANTY MADE IN THIS SECTION 6, PEAKPORTAL MAKES NO WARRANTIES WITH RESPECT TO SERVICES OR DELIVERABLES IT PROVIDES UNDER THIS AGREEMENT OR ANY DELIVERABLE PROVIDED BY PEAKPORTAL IN CONNECTION WITH THIS AGREEMENT. PEAKPORTAL DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PEAKPORTAL MAKES NO WARRANTY THAT THE SERVICES OR ANY DELIVERABLE WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE STATEMENT OF WORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
7. CONFIDENTIALITY AND PUBLICITY.
7.1 Definition of “Confidential Information.” “Confidential Information” means any information disclosed by either Party to the other Party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as Confidential,” “Proprietary,” or with some similar designation. Any information, in whatever form, disclosed by PeakPortal that relates to its software or to services to be provided under any Statement of Work that is not publicly known shall be included in the definition of “Confidential Information.” Confidential Information may also include information disclosed to a disclosing Party by third Parties. Confidential Information shall not, however, include any information which: (a) was publicly known before disclosure by the disclosing Party; (b) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by or on behalf of the disclosing Party as shown by the receiving Party's documents, files and records immediately prior to the time of disclosure; (d) is obtained by the receiving Party from a third party without a breach of such third party's obligations of confidentiality; (e) is independently developed by the receiving Party (other than at the direction of the disclosing Party) without use of or reference to the disclosing Party's Confidential Information, as shown by documents and other competent evidence in the receiving Party's possession; or (f) is required by law to be disclosed by the receiving Party, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
7.2 Obligation. Each Party shall treat as confidential all Confidential Information received from the other Party, shall not use such Confidential Information except as expressly permitted under or to perform a Statement of Work, and shall not disclose such Confidential Information to any third party without the other Party's prior written consent, provided that Personnel shall not be deemed third parties. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other Party. Without limiting the foregoing, those measures shall include the protections that Party makes of its own most highly confidential information; and each Party shall ensure that its employees and agents who have access to Confidential Information of the other Party have signed a non-use and a non-disclosure agreement in content similar to the provisions hereof, or are otherwise bound by law to protect Confidential Information hereunder, prior to any disclosure of Confidential Information to such employees or agents,.
7.3 Other Confidentiality Agreements. The terms in this Section 7 supplement any other confidentiality agreements between the Parties with respect to any products or services to be provided under the terms of any Statement of Work. In the event of a conflict between the terms of this Section 7 and any separate confidentiality agreement, the terms of this Section 7 shall prevail.
7.4 Publicity. PeakPortal may identify Client on its website as a PeakPortal client, including by displaying Client’s logo.
8. LIMITATION OF LIABILITY. PeakPortal expects Client to back up all data and software affected by the services. PeakPortal is not liable for damages, expenses or losses incurred by the accidental erasure, damage or destruction of files, data or programs (whether or not developed by PeakPortal) that may occur in the course of PeakPortal’s performance under this Agreement. IN NO EVENT WILL EITHER PARTY BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (i) AMOUNTS IN EXCESS OF THREE TIMES THE FEES ACTUALLY RECEIVED FROM CLIENT AS OF THE DATE A CLAIM IS RECEIVED PURSUANT TO THIS AGREEMENT OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES (WHICHEVER IS LOWER), (ii) ANY DAMAGES OR LOSSES CAUSED BY A MATTER BEYOND PEAKPORTAL’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE PROVIDED IN CONNECTION WITH THE SERVICES; or (iii) ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 PeakPortal’s Indemnity. PeakPortal shall defend, indemnify and hold harmless Client from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees (“Losses”) with respect to third-party claims to the extent arising out of:
(a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent or grossly negligent acts or omissions of PeakPortal or PeakPortal Personnel;
(b) a claim that any of the Services or Deliverables infringes a U.S. patent, trade secret, copyright or trademark right of a third party; provided, however, that PeakPortal shall have no indemnity obligations with respect to claims to the extent arising out of (i) any instruction, information, designs, specifications or other materials provided by Client; (ii) use of the Deliverables in combination with any materials or equipment not supplied by PeakPortal, if the infringement would have been avoided by the use of the Deliverables not so combined; or (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than PeakPortal or PeakPortal Personnel. In addition to PeakPortal’s indemnity obligations, if an infringement claim is made or appears likely to be made about a Deliverable, PeakPortal may, in its sole discretion, either: (x) procure for Client the right to continue to use the Deliverable; (y) modify the Deliverable so that it is no longer infringing; or (z) replace it with a non-infringing Deliverable. Moreover, in the event of a third-party claim received with respect to any Deliverable, PeakPortal may terminate the Statement of Work and/or refund the fees paid with respect to such allegedly infringing Deliverable.
9.2 Client Indemnity. Client shall defend, indemnify and hold harmless PeakPortal from and against all Losses with respect to third-party claims to the extent arising out of:
(a) any instruction, information, designs, specifications or other materials provided by Client;
(b) any infringing use of the Deliverables in combination with any materials, software, services or equipment not supplied by PeakPortal or expressly written in a Statement of Work, if the infringement would have been avoided by the use of the Deliverables not so combined; or
(c) any modifications or changes made to the Deliverables by or on behalf of any person other than PeakPortal or PeakPortal Personnel.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall commence on the Effective Date of the first executed Statement of Work and shall continue in force so long as Services are being provided under any active Statement of Work, unless earlier terminated.
(a) Either Party may terminate any Statement of Work without cause upon sixty (60) days’ written notice to the other.
(b) Either Party may terminate any Statement of Work immediately upon notice in the event that the other Party (i) materially breaches this Agreement, and such breach is either incapable of cure not actually cured within thirty (30) days after receipt of written notice of such breach; (ii) becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they become due); (iii) makes an assignment for the benefit of creditors; or (iv) breaches its confidentiality obligations hereunder.
10.3 Survival. The provisions contained in this Agreement that by their sense and context are intended to survive the cancellation or termination of this Agreement or any Statement of Work hereunder shall survive such cancellation and termination.
10.4 Effect of Termination.
(a) If this Agreement or a Statement of Work is terminated by PeakPortal for convenience, or by Client due to PeakPortal’s material breach, then PeakPortal shall refund to Client fees (including any Initial Retainer), on a pro rata basis, for any Services or Deliverables which have been pre-paid but not provided or delivered at the time of termination. Furthermore, in the event of such termination, the Parties will establish an orderly phase-out of the Services. Within fifteen (15) business days after such termination, PeakPortal will provide Client with (a) the results of all Services performed up to the date of termination, including all Deliverables in the form and stage of development on the termination date, (b) a final invoice for all unbilled but performed Services, and (c) if applicable, a refund of unused pre-paid fees. PeakPortal may set off all amounts owed by Client against pre-paid fees held by PeakPortal and Client agrees to pay any additional fees due and owing within fifteen (15) days from the date of PeakPortal’s final invoice.
(b) If this Agreement is terminated for any reason, then the licenses granted in Section 5 shall survive, but conditioned on Client’s payment in full of all amounts due under this Agreement.
11.1 Non-exclusivity. PeakPortal retains the right to perform the same or similar services as the Services for third parties during and after the Term of this Agreement.
11.2 Assignment. This agreement shall not be assigned or otherwise transferred by either Party without the prior written consent of the other, which consent shall not unreasonably be withheld; provided, however, that either Party may assign in connection with a merger or sale of all or substantially all of its assets or to a company controlling, controlled by, under common control with it.
11.3 Waiver and Amendment. No modification, amendment or waiver of any provision of any Statement of Work shall be effective unless in writing and signed by the Party to be charged therewith. No failure or delay by either Party in exercising any right, power or remedy under any Statement of Work, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
11.4 Governing Law; Forum. Any Statement of Work shall be governed by the laws of the State of California, USA, excluding its conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for International Sale of Goods. All actions shall be brought in federal or state courts located in Los Angeles County, California, and the Parties hereby waive their rights to challenge to this jurisdiction and venue selection.
11.5 Notices. Any notice or communication under this Agreement shall be in writing and shall be properly given if it is delivered to the other Party at the address set out in the Agreement either by courier, or by registered mail or facsimile transmission. A notice or communication sent by courier or facsimile will be deemed to have been received when delivered, and any sent by mail will be deemed to have been received seven days from the date of posting.
11.6 Independent Contractors. The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose, and neither Party shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
11.7 Severability. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law.
11.8 Complete Understanding. This Agreement and all Statements of Work, including any schedules attached thereto, constitute the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, including without limitation any terms sheets, quotes, and estimates. In the event of a conflict between any term or terms of the Agreement and any term or terms of a Statement of Work, the terms of this Agreement shall prevail.
11.9 Force Majeure. Except for Client's obligations to pay PeakPortal hereunder, neither Party shall be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control.
11.10 Counterparts. This agreement may be executed in one or more counterparts all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by the Parties and delivered to each of the other Parties.
11.11 Attorneys’ Fees. The prevailing Party in any litigation arising out of or relating to this agreement will be entitled to recover all reasonable attorneys’ fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review.