Master Services Agreement
This MSA describes the terms and conditions under which Adeptec will perform the services and provide certain deliverables for Client as described in any Statement of Work between the parties.
Terms and Conditions
Adeptec and Client hereby agree to the following terms and conditions:
1. DEFINITIONS.
The following definitions with initial letters capitalized, apply to this agreement and any related Statement of Work.
1.1. “Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance which relates, directly or indirectly, to the provision of Services, or to the performance of work obligations hereunder or the interpretation or application of this MSA.
1.2. “Code” shall mean computer-programming code. Code includes Binary Code but not Source Code. “Binary Code” means Code that loads and executes without need of further processing by a linker or software compiler or that results when Source Code is processed by a software compiler. “Source Code” means human-readable form of Code and related system documentation.
1.3. “Deliverable” shall mean Code or Documentation delivered by Adeptec to Client to fulfill the Services under a SOW or any other object identified as a Deliverable in a SOW. In no event will commercially available products be considered part of the Deliverable nor licensed to Client under this MSA.
1.4. “Documentation” shall mean any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services.
1.5. “Effective Date” shall mean the later of the dates this MSA is executed by Client and Adeptec.
1.6. “MSA” shall mean the Master Services Agreement; together with any and all supplemental terms or Amendments to this MSA and any related Statement of Work (“SOW”).
1.7. “Party” or “Parties” shall mean Adeptec and/or Client.
1.8. “Services” shall mean the professional services or Deliverables as described in a SOW to be provided by Adeptec and subcontractors, to or for the benefit of Client. Such services may include, but are not limited to, computer programming code, documentation, services such as consulting, implementation, integration, remediation, support, and training.
1.9. “SOW” shall mean a written document executed between the Parties that includes at least the following information: (a) a description of the Services and Deliverables; (b) the Parties’ responsibilities; and (c) the Service fees and method of calculation (if applicable).
2. SERVICES.
2.1. Provision of Services. All Services provided by Adeptec to Client shall be provided pursuant to an individual SOW (other than the provision of standard Services purchased through the website or by a purchase order). A SOW will become effective upon execution by the authorized representatives of both Parties, unless the SOW is in the form of a purchase order signed by Client, which will become effective upon acceptance by Adeptec.
2.2. Integration of SOW. A SOW will be deemed to incorporate the terms and condition of this MSA unless explicitly stated otherwise in the SOW and/or a signed Amendment to this MSA. If a SOW contains provisions inconsistent with this MSA, the SOW provisions shall prevail with respect to that SOW.
2.3. Modification of SOW. Any changes to the obligations of either Party or to any other material aspect of a SOW will require a written amendment (“Amendment”) signed by both Parties that describes the changes and any related cost adjustments.
2.4. Performance. Adeptec agrees to provide consulting, technical support, and/or training services described in each SOW and entered into under this MSA (such services are collectively referred to as “Services”).
2.5. Acceptance. Services will be deemed satisfactory to and accepted by Client unless within thirty (30) days after provision of Services to Client, Client gives Adeptec written notice of aspects in which the Services do not meet the SOW requirements. Upon receipt of such written notice, Adeptec will use commercially reasonable efforts to make such changes as will be required to correct any deficiencies; if Adeptec is unable to correct the Services within a reasonable period of time, Adeptec or Client may terminate the relevant SOW and Adeptec shall provide a refund of the amount Client paid for Services Adeptec did not correct.
2.6. Affiliates. With respect to a Party, the term “Affiliate” shall mean any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party. “Client”. may include Client’s Affiliate(s): (i) receiving the benefit of the Services through Client’s purchase of the Services, or (ii) whose data is included, accessed or received by Adeptec in connection with the performance of the Services for Client. With respect to such Client Affiliate(s), Client hereby represents that: (a) Client has obtained the necessary consent from each Client Affiliate for Adeptec to access such Client Affiliate’s networks and data in connection with providing the Services, and (b) each Client Affiliate agrees to, and is hereby legally bound by, the terms of this MSA. The Parties acknowledge and agree that Client Affiliate(s) are not intended to be third party beneficiaries to this MSA. Client shall be fully liable for any breach of the terms of this MSA by its Affiliate(s) receiving or having access to the Services hereunder.
3. RESPONSIBILITIES.
3.1. Assumptions. The description of the Services and related compensation amount in each SOW will be based upon information Client provides to Adeptec and upon any assumptions set forth in the SOW. Client acknowledges that if the information provided by Client is incomplete or inaccurate, or if the stated assumptions are not correct, then the Parties will modify the SOW pursuant to Section 2.3 above.
3.2. Client Assistance. Client agrees that it will reasonably cooperate with and assist Adeptec in the performance of the Services by Adeptec.
3.3. Project Managers. Each Party shall appoint a project manager (“Project Manager”) for each SOW. Each Party may replace its designated Project Manager upon written notice to the other Party.
3.4. Protection of Property. Client is solely responsible to take appropriate measures to isolate and back up its computer systems, including its computer programs, data and files, and to take all other actions necessary to protect its systems and data.
3.5. Safety Regulations. Adeptec employees performing Services on Client premises shall observe reasonable safety and security protocols of which Adeptec is notified in writing.
4. SERVICE FEES.
4.1. Purchase Order. Prior to the issuance of a Statement of Work (“SOW”), Client shall issue a Purchase Order (“PO”) equal to the amount specified in the SOW. If Client does not issue POs, Client shall sign the quote (“Sales Quote”) or provide in the SOW Client’s billing contact and address.
4.2. Compensation. Client shall pay all the amounts specified in the relevant SOW, including, without limitation, compensation for Services and all reasonable out-of-pocket expenses incurred in the performance of the Services, and for any non-standard expenses incurred at the written request of Client.
4.3. Invoicing. Unless otherwise agreed in a SOW, Service fees and expenses shall be calculated by Adeptec on a monthly basis and invoiced to Client within thirty (30) days after the end of each month. Client shall pay for the Services invoiced under this MSA in accordance with the Service fees set forth in the SOW.
4.4. Payment. Payment shall be due thirty (30) days from the date of invoice. All payments shall be made in U.S. dollars. Payments made later than the due date will accrue interest from the date due to the date paid at the lesser rate of two (2) percent per month or the maximum allowed by applicable law. If a payment is late, Adeptec shall be entitled to suspend performance of the Services and, at its option, terminate the relevant SOW on written notice.
4.5. Taxes. Payments made by Client to Adeptec are exclusive of applicable taxes. Client will pay and bear the liability for any taxes associated with the delivery of all Services, including sales, use, excise, and value added taxes (VAT), but excluding: (i) taxes on Adeptec’s net income, capital, or gross receipts, or (ii) any withholding tax imposed if such tax is allowed as a credit against U.S. income taxes of Adeptec, such as a withholding tax on a royalty payment made by Client where required by law. If Client is required to withhold taxes, Client will furnish Adeptec receipts substantiating such payment. If Adeptec is required to remit any tax or duty on behalf or for the account of Client, Client will reimburse Adeptec within thirty (30) days after Adeptec notifies Client in writing of such remittance. Client will provide a valid tax exemption certificate in advance of any remittance otherwise required to be made by Adeptec on behalf or for the account of Client, where such certificate is applicable.
5. WARRANTIES.
5.1. Warranty for Services. Adeptec warrants that the Services shall be performed in a professional manner in accordance with generally accepted industry standards. Unless otherwise stated in the SOW, this warranty shall be effective for sixty (60) days following acceptance of the Services in accordance with Section 2.5. Upon receipt of written notice of breach of this warranty, Adeptec’s obligation is to correct the Services so that the Services comply with this warranty. If Adeptec is unable to correct the Services within a reasonable period of time, Client’s sole remedy is to terminate the relevant SOW and obtain a refund of the amount Client paid to Adeptec for the Services Adeptec is unable to correct.
5.2. Exclusions. This warranty excludes non-performance issues that result from third-party hardware or firmware malfunction or defect; software not developed by Adeptec; incorrect data or incorrect procedures used or provided by Client or a third party; or defects which are outside the reasonable control of Adeptec. Client will reimburse Adeptec for its reasonable time and expenses for any Services provided at Client’s request to remedy excluded non-performance issues. This warranty shall immediately cease if Client or any third party modifies any portion of a Deliverable and/or modifies Client’s system so that a Deliverable is no longer functional or appropriate.
5.3. Disclaimer. EXCEPT AS EXPRESSLY DESCRIBED IN THIS WARRANTY SECTION, ADEPTEC MAKES NO WARRANTY OF ANY KIND. ADEPTEC DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO SERVICES AND DELIVERABLES, INCLUDING THE IMPLIED WARRANTIES OF GOOD TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. Adeptec does not warrant that the Services or any Deliverables provided will be without defect or error.
6. CONFIDENTIALITY.
6.1. “Confidential Information” shall mean (i) the terms of this MSA and any SOW, (ii) Client documents, files and data which Adeptec has accessed in performing the Services, and (iii) any other information that the disclosing party (“Discloser”) desires to protect against unrestricted disclosure by the receiving Party (“Recipient”) and that (a) if disclosed in tangible or electronic form, is marked in writing as “confidential” or (b) if disclosed orally or visually, is designated at the time of disclosure as “confidential.”
6.2. Exclusions. Confidential Information will not include any information that is (i) already in possession of Recipient without obligation of confidence; (ii) independently developed by Recipient; (iii) becomes publicly available without breach of this MSA; (iv) rightfully received by the Recipient from a third party without obligation of confidence; or (v) released for disclosure by the Discloser with its written consent.
6.3. Exception. When disclosure may be required by law in connection with a legal proceeding in a court or other governmental authority, Recipient may disclose Confidential Information provided that the Recipient (a) gives Discloser prompt notice of the order; (b) limits the scope of disclosure to what is reasonably required by the applicable authority; and (c) provides Discloser with an opportunity to challenge the release of the Confidential Information or obtain a protective order prior to disclosure.
6.4. Obligations. The Recipient of Confidential Information agrees to exercise reasonable care to protect Confidential Information from unauthorized disclosure, which care shall not be less than the Recipient exercises to protect its own confidential information. The Recipient may disclose Confidential Information only to its employees or agents who need to know such information and shall contractually require such employees or agents to comply with the obligations of confidentiality. The Recipient shall have no obligation to limit or restrict the assignment of persons that have accessed Confidential Information.
6.5. Expiration of Duty. Recipient’s duty to hold Confidential Information in confidence expires five (5) years after termination of the MSA or, in the case of Confidential Information received under a SOW, the applicable SOW; expiration of this duty shall not modify other restrictions on the Recipient or Rights of the Discloser, such as any patent or copyright rights or additional obligations with regard to Client confidential information.
6.6. “Residuals” shall mean technical information or know-how retained in an employee’s memory, but does not include information deliberately memorized to classify it as Residuals. Either Party shall be free to use for any purpose Residuals resulting from access to or work with Confidential Information provided that such Party otherwise complies with the confidentiality obligations contained in this Section 6.4. However, this provision does not grant either Party a license under the other Party’s patents or copyrights, nor does it give the Recipient the right to disclose business plans or financial, statistical, or personnel data, nor does it allow for any purpose the literal copying of a document.
7. INTELLECTUAL PROPERTY.
7.1. Ownership. Except as expressly provided otherwise in this Section 7 or any SOW, Adeptec (and/or its licensors) owns all right, title and interest, including all intellectual property rights, in any Code, Documentation, or other materials developed, delivered and/or used by Adeptec in the performance of this MSA. Neither this MSA nor any SOW changes ownership of any pre-existing materials.
7.2. License. Subject to payment of all applicable fees for Services and Deliverables provided to Client, Adeptec grants to Client a nonexclusive, nontransferable, worldwide, perpetual, license to reproduce and internally use the Deliverables. All proprietary rights notices must be faithfully reproduced and included on all copies (including any modifications or adaptations allowed by this MSA or any SOW).
7.3. Protection of Deliverables. Client shall take all reasonable steps to protect Deliverables under this MSA, from unauthorized copying or use. If a Deliverable consists of Code, the Source Code of such Deliverable is not licensed to Client (subject to Section 7.2) and Client agrees not to reverse engineer, decompile or disassemble any Code except and only to the extent it is expressly permitted by applicable law.
7.4. Reservation of Rights. Adeptec reserves all rights not expressly granted to Client. Except as expressly authorized in this MSA, Client shall not sell, rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify or time share any Deliverable.
7.5. Third Party Materials. Nothing in this MSA or any related agreement shall restrict or limit or otherwise affect any rights or obligations Client may have, or conditions to which Client may be subject, under any applicable open source licenses to any open source code contained in Deliverables or any third-party licenses for third-party Code contained in Deliverables.
8. LIMITATION OF LIABILITY.
8.1. Liability. A PARTY’S LIABILITY FOR ANY CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY SOW SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID, AND ANY AMOUNTS OWED BUT NOT YET PAID, FOR THE SERVICES. THE LIMITATION IN THIS SECTION
8.1 DOES NOT APPLY TO A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, VIOLATIONS OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT OR THE WILLFUL MISCONDUCT OF A PARTY.
8.2. Disclaimer. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (INCLUDING LOSS OF PROFITS OR BUSINESS) ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY SOW, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. Limitation Of Action. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY CLIENT MORE THAN ONE (1) YEAR AFTER THE ACTION ACCRUED.
9. INDEMNITY.
9.1. Infringement Indemnity. Subject to the limitations in Section 8, Adeptec will defend and indemnify Client against any third party claim that Client’s exercise of its licensed use rights under this MSA with respect to a Deliverable infringes upon such third party’s rights under a copyright, trademark, or patent or misappropriates the subject matter of such third party’s trade secret, under the laws of the country in which Client takes delivery of the Deliverable (“IP Infringement Claim”) provided that: (i) Client promptly notifies Adeptec in writing of an IP Infringement Claim such that Adeptec is not materially prejudiced by any delay in such notification; (ii) Adeptec has sole control of the defense and all related settlement negotiations and (iii) Client provides Adeptec with reasonable assistance (for which Adeptec will pay Client’s reasonable out of pocket costs) in defending the IP Infringement Claim. Subject to the limitations in Section 8, Adeptec will pay any damages, costs, and expenses finally awarded (or agreed to by settlement) for any such IP Infringement Claim. If Client desires separate legal representation in any IP Infringement Claim, Client will be responsible for the costs and fees of Client’s separate counsel.
9.1.1. Remedy. Should any Deliverable provided by Adeptec under this MSA, or the operation of any such Deliverable, become, or in Adeptec’s opinion is likely to become, the subject of infringement of any copyright, patent, trademark, or misappropriation of any trade secret, Adeptec’s sole obligation and Client’s exclusive remedy under this Section shall be, at Adeptec’s option and expense, either to procure for Client the right to continue using the Deliverable, to replace or modify the Deliverable so that it becomes non-infringing, or to grant Client a refund of the amounts paid by Client.
9.1.2. Disclaimer. Adeptec shall have no responsibility for infringement, including obligations of indemnification under this Section, to the extent the infringement results from (a) compliance with Client’s designs or instructions, (b) a modification not authorized in writing by Adeptec, (c) use or combination with third-party software, equipment, or data, (d) non-licensed use, (e) third-party software provided under this MSA, or (f) open source technology incorporated in or provided with Services or Deliverables.
9.2. General Indemnity. Each Party (“Indemnifying Party”) will indemnify, defend, and hold the other Party, its subsidiaries, affiliates, officers, directors, employees, and/or shareholders, harmless from any final court judgment (or settlement to which the Parties have agreed) arising from personal injury or tangible property damage which is determined by a court to be caused by the negligence or willful misconduct of the Indemnifying Party or its authorized employees relating to this MSA. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. “Tangible Property” does not include electronic files, data, or other electronic information.
9.3. Insurance. Each Party will maintain reasonable amounts of insurance, which shall at least meet any limits required by law, for public liability, property damage, employer’s liability and workers compensation.
10. BUSINESS CONTINUITY.
10.1. Force Majeure. If either Party shall be prevented from performing any portion of this MSA by causes beyond its control, including: war, riot, insurrection, civil commotion, labor disputes, governmental regulations or controls, casualty, forces of nature, acts of God, inability to obtain materials or services, or software of third parties; such defaulting Party shall be excused from performance for the period of the delay. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
11. TERM & RENEWAL.
11.1. Initial Term. This MSA shall commence on the Effective Date and continue in effect for one (1) year thereafter (“Initial Term”).
11.2. Renewal Term. Following expiration of the Initial Term, this MSA will be automatically renewed for additional one (1) year term (each, a “Renewal Term”), until either Party gives written notice otherwise at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
12. TERMINATION.
12.1. Termination For Cause. Either Party may terminate the MSA or any SOW upon written notice for the substantial breach by the other Party of any material term, if such breach is not cured within thirty (30) days following receipt of written notice of breach from the non-breaching Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
12.2. Termination For Insolvency. Subject to the provisions of Title XI, United States Code, if either Party becomes or is declared insolvent or bankrupt, is subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this MSA as of the date specified in such notice of termination.
12.3. Additional Termination Right. Adeptec may terminate this MSA, immediately and without advance notice, where Client is verbally or physically abusive to, or verbally or physically threatens in any manner, Adeptec’s personnel.
12.4. Effect of Termination. Unless otherwise agreed to in writing, upon termination of the MSA, any SOW then in effect will immediately terminate.
12.5. Termination Payment. In the event of termination of a SOW, Client shall pay Adeptec the amounts specified in the Fee Schedule Section of each such SOW relating to work performed by Adeptec prior to and including the date of termination, as well as any additional costs or expenses which Adeptec has incurred or contracted for with respect to the Services and is unable to avoid. Additionally, all property of each Party in possession of the other Party relating to such SOW shall be returned, including, without limitation, any Deliverable provided to Client by Adeptec under such SOW but not yet fully paid for by Client. Except in case of breach by Client, Client may retain a license under Section 7.2 to use incomplete Deliverables for which it has paid; however, all warranties regarding such Deliverables shall cease.
12.6. Survival of Terms. The provisions of this MSA and each SOW which by their nature extend beyond termination will survive termination or expiration of this agreement or the relevant SOW.
13. LAW AND VENUE.
13.1. Dispute Resolution. Prior to initiating any legal action arising under or relating to this MSA, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within thirty (30) days of the receipt of such notice.
13.2. Attorneys’ Fees. If a Party initiates MSA-related legal proceedings, the prevailing Party will be entitled to recover reasonable attorneys’ fees.
13.3. Governing Law. This MSA shall be governed by the laws of the State of Washington, U.S.A, without giving effect to any principles of conflicts of law.
13.4. Jurisdiction. Jurisdiction shall lie exclusively in the District Courts of Spokane County, Washington. The sole and exclusive jurisdiction and venue for any litigation arising out of this MSA shall be an appropriate federal or state court located in the State of Washington, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or Forum non Conveniens.
14. MISCELLANEOUS.
14.1. Independent Contractors. The Parties herein act on their own behalf as independent contractors. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits. Nothing in this MSA, and no course of dealing between the Parties, shall be construed to create an agency, franchise, joint venture, employment, or any other relationship between the Parties beyond the relations set out in this MSA.
14.2. Subcontracting Services. Adeptec may subcontract any portion of the Services to a third party contractor without the prior consent of Client, provided that Adeptec remain fully responsible to Client for the delivery of the Services.
14.3. Non-Solicitation. During the term of this MSA and for a period of one (1) year after its expiration or termination, Client will not, either directly or indirectly, employ or solicit for employment any person employed by Adeptec or any of its Affiliates then or at any time within the preceding twelve (12) months with whom Client has worked in the course of performance of this MSA.
14.4. Use of Client Name. With Client’s written permission, Adeptec may use and publish Client’s name in its client lists, lists of referrals for other clients (or potential clients), and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.
14.5. No Waiver. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver. No waiver will be effective unless it is in writing and signed by an officer. If a Party waives any right, power or remedy it has, such waiver will not waive any successive or other right, power or remedy.
14.6. No Assignment. Neither Party shall transfer or assign this MSA without the prior written consent of the other Party. However, neither Party shall unreasonably withhold consent to an assignment of this MSA. Either Party may, with written notice to the other Party, assign the MSA to the surviving entity in the case of a merger or acquisition. This MSA is binding upon the Parties’ respective representatives, successors, and assigns.
14.7. Severability. If any provision or portion of this MSA shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
14.8. Entire Agreement. This MSA, including any SOW, constitutes the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties relative thereto, whether written or oral. This MSA and/or any SOW may be modified only by a written addendum or Amendment signed by authorized signatories of both Parties. The terms of any invoice, PO or similar document will not modify this MSA.
14.9. Notices. Unless otherwise agreed to by the Parties, all notices shall be deemed effective when made in writing and received by either (i) registered mail, (ii) certified mail (return receipt requested), (iii) overnight mail, or (iv) fax with confirmation, addressed and sent to the receiving Party’s address specified in the SOW, with the original of the notice being addressed to the Project Manager (with respect to any SOW)