SERVICE AGREEMENT
This Service Agreement (this "Agreement") sets forth the terms and conditions pursuant to which MSP Alliance, Inc. ("MSPA") will deliver business consulting and advisory services, including as applicable software that enhances and enables such services, to the client identified in a Proposal ("Client").
1. Definitions
- a. "Client Work" means a work created by MSPA in the course of providing Services that MSPA delivers to Client, excluding: (i) modifications to or derivatives of an existing MSPA Item; (ii) any software or related technologies and documentation, whether owned by MSPA or by a third-party; (iii) items in the public domain or subject to an open source or open content license agreement; and (iv) general ideas, concepts, business know-how, information and work processes, including techniques within the consulting and software business generally.
- b. "Including" means "including, without limitation."
- c. "MSPA Items" means: (i) writings, content, works of authorship, materials, and software (including Software) developed or acquired by MSPA or its suppliers prior to or independently of the Services, (ii) MSPA general information and know-how used by MSPA in the conduct of its business, including technical information, designs, templates, and methodologies, and (iii) any modifications to or derivatives of any of the items in (i) and (ii).
- d. "Proposal" means a binding proposal, quote, agreement, statement of work, order, or other binding document that references this Agreement and sets forth the Services, Software, associated fees, and other terms. The Proposal is between Client and either MSPA or an authorized MSPA reseller ("Reseller").
- e. "Services" means the business consulting, advisory, assessment, training, and other services provided to Client under this Agreement, as specified in a Proposal.
- f. "Software" means software that is made available to Client on a hosted, SaaS basis that enhances and enables the Services.
- g. "Users" means employees of Client who are authorized by Client to access and use the Software.
2. Services.
- a. Proposal. MSPA will provide the Services as specified in the Proposal. In the event of any conflict between the terms of the Proposal and the terms of this Agreement, the terms in the Proposal control.
- b. Cooperation. Client shall reasonably cooperate with MSPA and shall provide all information known by or available to Client that may aid MSPA in delivering the Services.
- c. Compliance with Laws. Each party shall comply with all applicable laws in connection with the delivery and use of the Services and Software, including all laws relating to export control and sanctions laws.
3. Intellectual Property.
- a. Client Works. Client Works shall be deemed a "work made for hire" under U.S. law and are the sole and exclusive property of Client. To the extent any Client Work may be deemed not to be a "work made for hire" under applicable law, MSPA hereby irrevocably assigns and conveys to Client all its copyright and other intellectual property rights in that Client Work.
- b. License to Client Works. Client hereby grants MSPA a limited, non-exclusive, royalty-free license to use any Client Works for MSPA's internal business purposes during the term of this Agreement, including as needed to deliver the Services.
- c. MSPA Items. MSPA and its suppliers retain sole ownership of the MSPA Items, including all intellectual property rights in all MSPA Items. No MSPA Item will be deemed a work made for hire. To the extent any MSPA Item for any reason is determined not to be owned by MSPA, Client hereby irrevocably assigns and conveys to MSPA all its copyright and other intellectual property rights in such MSPA Item.
- d. License to MSPA Items (other than Software). MSPA grants to Client a perpetual, non-exclusive, worldwide, royalty-free license to use and distribute the MSPA Items (other than the Software) that are embedded in the Services, solely as embedded in the Services and not as free-standing items.
- e. License to Software. MSPA grants to Client, during the term of applicable Proposal, the non-exclusive, worldwide right to use the Software solely for the benefit of Client. Client agrees not to reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Software. Client is responsible for its Users' compliance with the terms of this Agreement.
4. Confidentiality.
- a. Confidential Information. Each party and its employees or agents may be exposed to or may acquire information from or on behalf of the other party that either is marked "CONFIDENTIAL" or with a similar marking, or that reasonably should be understood to be proprietary or confidential to the other party ("Confidential Information"). Confidential Information of MSPA specifically includes all MSPA Items disclosed or made available to Client.
- b. Nondisclosure and Nonuse. Each party shall use the other party's Confidential Information solely for performing its obligations and exercising its rights under this Agreement, and shall not disclose any of the other party's Confidential Information to any third party.
- c. Exclusions. Confidential Information does not include information that: (a) at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; (b) either party can show was in its lawful possession at the time of disclosure and was not acquired, directly or indirectly, from the other; or (c) must be disclosed pursuant to a court order or by law. In addition, the terms of this Agreement including the Proposal may not be disclosed to any third party, except by reason of legal or accounting requirements.
- d. Feedback. Any suggestions or other feedback made by Client regarding the Services or the Software is the Confidential Information of MSPA.
- e. Return or Destruction. Upon request of the disclosing party, the receiving party shall return or destroy the Confidential Information received from the disclosing party, unless such Confidential Information is required for the Services.
5. Fees
- a. General. Except to the extent otherwise set forth in the Proposal, including in the Proposal between Client and Reseller, the terms in this Section 5 shall apply.
- b. Fees and Payment Terms. Client shall pay the fees and other amounts set forth in the Proposal. Unless otherwise set forth therein, all payments under this Agreement shall be: (i) due within fifteen (15) days of invoice date, (ii) made in United States dollars and (iii) non-refundable.
- c. Taxes. Fees are exclusive of all applicable taxes. Client shall pay all taxes arising out of this Agreement, excluding taxes based on MSPA's income.
6. Term and Termination.
- a. Term. The term of this Agreement is set forth in the Proposal.
- b. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party. MSPA may suspend the delivery of any Services or Software if Client is in material breach of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from MSPA.
- c. Survival. Sections 1 (Definitions), 3 (Intellectual Property), 4 (Confidentiality), 7 (Non-Solicitation), 10 (Limitation of Liability), and 11 (General Terms), and any accrued obligations, shall survive any termination or expiration of this Agreement. Furthermore, any provision which reasonably would be understood by its nature to survive, shall so survive.
7. Non-Solicitation.
During the term of this Agreement and for a period of twelve (12) months thereafter, neither party, directly or indirectly, knowingly will solicit the employment of any person employed by such other party within the preceding twelve (12) month period. Violation of this Section would result in irreparable harm.
8. Warranties.
MSPA warrants that the Services will be performed in a workmanlike manner in accordance with this Agreement. EXCEPT FOR THE EXPRESS WARRANTY STATED ABOVE, MSPA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALSO, ALTHOUGH IT IS THE INTENTION OF MSPA TO DELIVER SUPERIOR CONSULTING SERVICES, CLIENT ACKNOWLEDGES THAT ANY COMMUNICATIONS BETWEEN MSPA AND CLIENT DO NOT CONSTITUTE LEGAL, FINANCIAL, OR ACCOUNTING ADVICE.
9. Indemnity.
Each party shall defend, indemnify and hold the other party harmless against all costs and expenses, including reasonable attorney's fees, associated with the defense or settlement of any claim by a third-party that any of the items, services or deliverables provided by the indemnifying party infringe any third-party patent, copyright, trademark, trade secret or other intellectual property rights, and the indemnifying party shall pay any judgments or settlements based on any such claims, unless such claim is due to the modification of such items, services or deliverables by the indemnified party.
10. Limitation of Liability.
EXCEPT FOR ANY CLAIMS WITHIN THE SCOPE OF A PARTY'S INDEMNITY OBLIGATIONS AS SET FORTH ABOVE, EACH PARTY'S TOTAL LIABILITY UNDER THIS AGREEMENT IS LIMITED ANY ACTUAL, DIRECT DAMAGES INCURRED BY THE OTHER PARTY AND IS FURTHER LIMITED TO THE TOTAL AMOUNTS PAID FOR SERVICES UNDER THE PROPOSAL THAT IS MOST CLOSELY ASSOCIATED WITH SUCH LIABILITY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES OR CLAIMS, OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, AND LOSS FROM INTERRUPTION OF BUSINESS, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE.
11. General Terms.
- (a) No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof.
- (b) Neither party is to be held liable for any delay or failure in performance of all or a portion of its obligations under this Agreement due to causes beyond its reasonable control, including acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers.
- (c) Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party; provided that either party may assign this Agreement without consent to its successor in connection with the sale of all or substantially all of its business. This Agreement is binding upon the parties, their successors and permitted assigns.
- (d) This Agreement is to be governed by and construed in accordance with the laws of the State of Nevada. Jurisdiction and venue for any action arising under this Agreement is exclusively in the courts located in Nevada.
- (e) If an action is brought to enforce or interpret this Agreement or the Proposal, the prevailing party is to be entitled to reasonable attorney fees in addition to any other remedies to which it may be entitled.
- (f) If any term or provision of this Agreement or the Proposal is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties' intention underlying the invalid term or provision.
- (g) This Agreement and the Proposal set forth the entire understanding of the parties with respect to the subject matter hereof. No terms or conditions, oral or written, including, but not limited to those appearing on contracts, insertions orders or instructions, will be binding on MSPA. Each party, along with its respective legal counsel, has had the opportunity to review and modify this Agreement. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party. This Agreement may be modified or amended only by a writing signed by both parties.
- (h) The Proposal may be executed in counterparts and exchanged via facsimile or e-mail, each of which will be deemed to be an original, and all of which together will constitute one and the same.
12. Effective Date:
This Agreement shall be binding and deemed effective when the Proposal is executed by all parties.