SERVICE AGREEMENT

Last Updated November 2024

(click here to view the August 2024 version)

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.
If there is any conflict between the terms of the Proposal and this Agreement, the terms in the Proposal control.

b. Cooperation.
Client shall reasonably cooperate with MSPA and 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,” 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 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.
No MSPA Item will be deemed a work made for hire.
If any MSPA Item is determined not to be owned by MSPA, Client hereby irrevocably assigns and conveys to MSPA all its rights in such MSPA Item.

d. License to MSPA Items (other than Software).
MSPA grants 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 standalone items.

e. License to Software.
MSPA grants Client, during the term of the 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 this Agreement.

4. Confidentiality

a. Confidential Information.
Each party and its employees or agents may acquire information from the other that is marked “CONFIDENTIAL” or reasonably understood to be proprietary (“Confidential Information”).
MSPA’s Confidential Information includes all MSPA Items disclosed or made available to Client.

b. Nondisclosure and Nonuse.
Each party shall use the other’s Confidential Information solely to perform under this Agreement and shall not disclose it to any third party.

c. Exclusions.
Confidential Information does not include information that:
(a) is publicly available without fault of the recipient;
(b) was in the recipient’s lawful possession at the time of disclosure; or
(c) must be disclosed by law or court order.
The terms of this Agreement and Proposal may not be disclosed except as required by legal or accounting obligations.

d. Feedback.
Any feedback from Client regarding the Services or Software is MSPA’s Confidential Information.

e. Return or Destruction.
Upon request, the receiving party shall return or destroy Confidential Information unless required to retain it for Services.

5. Fees

a. General.
Except as otherwise stated in the Proposal, this Section applies.

b. Fees and Payment Terms.
Client shall pay the fees set forth in the Proposal.
Unless otherwise stated:
(i) all payments are due within fifteen (15) days of invoice date;
(ii) payments must be in U.S. dollars;
(iii) payments are non-refundable.

c. Taxes.
Fees are exclusive of 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 upon written notice if the other materially breaches and fails to cure within thirty (30) days.
MSPA may suspend Services or Software if Client is in breach and fails to cure within thirty (30) days.

c. Survival.
Sections 1, 3, 4, 7, 10, and 11 survive termination, along with any accrued obligations or provisions that reasonably should survive.

7. Non-Solicitation

During the term of this Agreement and for twelve (12) months thereafter, neither party will knowingly solicit for employment any person employed by the other within the preceding twelve (12) months.
Violation of this section constitutes irreparable harm.

8. Warranties

MSPA warrants that Services will be performed in a workmanlike manner per this Agreement.

EXCEPT FOR THE EXPRESS WARRANTY ABOVE, MSPA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Client acknowledges that MSPA’s communications do not constitute legal, financial, or accounting advice.

9. Indemnity

Each party shall defend, indemnify, and hold harmless the other against all costs, expenses, and reasonable attorney’s fees arising from third-party claims alleging infringement of intellectual property, unless such claims result from modifications by the indemnified party.

10. Limitation of Liability

Except for indemnity obligations, each party’s total liability is limited to actual, direct damages up to the total amounts paid under the applicable Proposal during the twelve (12) months prior to the event giving rise to liability.

Neither party is liable for incidental, consequential, special, indirect, or punitive damages, including lost profits or business interruption, even if advised of their possibility.

11. Informal Dispute Resolution and Arbitration

The parties shall first attempt to resolve any dispute (“Dispute”) through good faith negotiation between authorized executives.
If unresolved within sixty (60) days, the Dispute shall be settled by arbitration under the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator in Las Vegas, Nevada.

The arbitrator may not disregard the limitations in Section 10.
The award will be final and binding, and judgment may be entered in any court with jurisdiction.
Either party may still seek injunctive or equitable relief to protect its confidential information or intellectual property.

12. General Terms

(a) No waiver of rights or remedies occurs by delay or partial exercise.
(b) Neither party is liable for delay or failure caused by events beyond reasonable control, including natural disasters, war, or government action.
(c) Neither party may assign this Agreement without written consent, except in connection with a sale of substantially all its business.
(d) This Agreement is governed by Nevada law.
(e) Prevailing party in arbitration or litigation is entitled to reasonable attorney fees.
(f) If any provision is invalid, the rest remains effective, and the invalid term is replaced with one closest to the parties’ intent.
(g) This Agreement and the Proposal are the complete understanding between the parties.
No external terms (including purchase orders or instructions) are binding.
Any ambiguity will not be construed in favor of or against either party.
This Agreement may only be modified in writing signed by both parties.
(h) The Proposal may be executed in counterparts and exchanged via facsimile or email, all constituting one agreement.

13. Effective Date

This Agreement is binding and effective when the Proposal is executed by all parties.