Master Services Agreement
This Master Services Agreement (this “Agreement”) is made by and between Small Box Consulting Inc. DBA SmallBox, an Indiana corporation (“SmallBox”) and the company or other legal entity accepting this agreement by the execution of one or more Statements of Work for SmallBox’s services (“Client”). By executing one or more Statements of Work that reference(s), is/are incorporated into, and is/are a part of this Agreement, Client agrees to the terms of this Agreement. SmallBox and Client may be referred to herein together as the “Parties”, and individually as a “Party”. This Agreement was last updated on August 1, 2017. This Agreement shall be effective as of the date that client accepts this Agreement via electronic signature or acceptance of a Statement of Work (the “Effective Date”).
1. Engagement of SmallBox.
(a) Services. Client hereby retains SmallBox to provide, and SmallBox hereby agrees to provide certain services (the “Services”) to the Client in accordance with one or more statements of work (each a “SOW”) incorporated herein by reference into this Agreement. SmallBox shall be responsible for delivering and performing only the Services specifically identified in the relevant SOW. Any modification to the Services indicated in any SOW shall be made pursuant to the Change Order process described in Section 2 of this Agreement.
(b) Non-Exclusivity. The Services being provided by SmallBox are on a non-exclusive basis and SmallBox shall be entitled to perform or engage in any activity not inconsistent with or otherwise prohibited by this Agreement, including, but not limited to entering into agreements similar to this Agreement with third parties, which third parties may include any competitor of Client.
2. Project Statements of Work.
The Services to be provided, together with the fees to be paid by Client therefor, shall be defined and described in each SOW. The form of each SOW shall be provided to Client by SmallBox. Hosting and ongoing support services (if any) shall be defined and described in a separate Hosting and Support Addendum to this Agreement and/or in a SOW. Client hereby agrees and acknowledges that SmallBox shall have the right to assign or delegate any or all of its rights, duties and obligations to one or more third parties selected by SmallBox for any such hosting and/or ongoing support services. In the event Client desires to make any modifications to the Services in any SOW, then SmallBox shall present a Change Order to Client for its approval and signature, in a form to be provided by SmallBox to Client. If Client executes a SOW for Services and (i) fails to schedule SmallBox’s performance of Services (including but not limited to workshops and in-person consulting) within the timeframe indicated in the relevant SOW, or (ii) cancels any project in any SOW, then SmallBox shall have the right to invoice Client for the full amount of the fees to be paid by Client pursuant to the relevant SOW (or any portion thereof) and Client shall pay such invoice within fifteen (15) days of the date of such invoice.
3. Payment Terms.
Unless otherwise indicated in the relevant SOW, SmallBox shall invoice Client on a monthly basis for Services rendered and associated expenses. SmallBox may, in its sole discretion, invoice on a less frequent basis. Client shall pay SmallBox within 15 days of the date of any invoice, unless otherwise expressly agreed to in a SOW. Notwithstanding anything to the contrary contained herein or in any SOW, SmallBox shall have the right to charge Client the following amounts for the following Services in the event such Services are provided to Client prior to commencing Services for any project pursuant to any SOW: $200 per hour for strategy and consulting services and $100 per hour for travel.
4. Acceptance of Deliverables.
Subject to Section 6 hereunder, “Deliverables” means all concepts, works, information, data, specifications, designs, configurations, algorithms, analytics, software (both in source code and object code form) artwork, slogans, logos, processes, methods and other ideas, materials developed, conceived, provided, created, or acquired by SmallBox for Client, pursuant to this Agreement and as described in each SOW executed and delivered by the parties hereunder. Client shall have five (5) business days from the date of receipt of any Deliverables to accept or reject such Deliverables (the “Rejection Period”). If Client determines that such Deliverables require changes within the Rejection Period, then Client shall notify SmallBox in writing and SmallBox shall modify the Deliverables in accordance with such request, provided that such requested modifications remain with the scope of work set forth in any applicable SOW. In the event Client shall not provide written notice to SmallBox of its rejection of any Deliverables prior to the termination of the Rejection Period, such Deliverables shall be deemed accepted and final by Client.
5. Confidentiality.
This Agreement creates a confidential relationship between SmallBox and Client. Information concerning SmallBox and Client’s respective business affairs, vendors, finances, properties, methods of operation, computer programs, employees, documentation, and other such information whether written, oral, or otherwise, is confidential in nature. SmallBox and Client shall not disclose any such confidential information to any third party, except as required by law.
6. Intellectual Property Ownership.
(a) The parties acknowledge and agree that the Deliverables (excluding any Excluded Components, as defined below) will be a work made for hire, and Client owns and shall own all right, title and interest in and to the Deliverables (excluding any Excluded Components) including, without limitation, all intellectual property rights therein or related thereto, including intellectual property rights relating to any functional specifications, technology, methods, apparatus, or processes underlying or embodied within the Deliverables. To the extent that such rights do not automatically vest in Client hereunder or by operation of law as works made for hire, SmallBox agrees to and hereby does assign, convey and transfer all right, title and interest it may have or acquire in or related to the Deliverables (excluding any Excluded Components) to Client, including, without limitation, all intellectual property rights therein or related thereto, including intellectual property rights relating to any functional specifications, technology, methods, apparatus, or processed underlying or embodied within the Deliverables. Client and SmallBox shall not challenge the other’s proper ownership of the Deliverables or any part thereof. Notwithstanding the anything in this Section 6(a) to the contrary, the ownership of Deliverables pursuant to this section shall apply only to the extent that Client has paid SmallBox all fees owed hereunder or from any SOW. “Excluded Components” means any (i) software, tools, modules, libraries, or general purpose code developed by SmallBox prior to the date hereof and used in connection with the development of any software hereunder, and (ii) code developed and used by SmallBox and not paid for by Client. SmallBox may incorporate any open source or third party software into any Deliverable.
(b) To the extent any Deliverable includes any Excluded Component and except as set forth in a SOW, SmallBox hereby grants to Client an irrevocable, unlimited, fully-paid, non-exclusive, worldwide, transferable, sublicensable (including through multiple tiers), divisible license to use such Excluded Component(s), including all intellectual property rights relating thereto, and including intellectual property rights relating to any functional specifications, technology, methods, apparatus, or processes underlying or embodied within the Excluded Components; provided, however, the rights to use the Excluded Component(s) pursuant to this Section 6(b) shall (i) apply only to the extent such Excluded Component is used as a component or constituent part of the relevant Deliverable, and (ii) not include the right to dissemble or otherwise remove any Excluded Component from the relevant Deliverable, for any purpose.
7. Term and Termination.
(a) Term. This Agreement shall be effective as of the Effective Date and shall continue for the period prescribed in this section or until earlier terminated as provided in this Agreement. The initial term of this Agreement shall be for a period of one (1) year from the Effective Date hereof, and shall automatically renew for additional one (1) year terms thereafter, unless and until terminated as provided in this Agreement. Without limiting any right or remedies under this Agreement or at law, either party may terminate this Agreement (i) immediately if the other party becomes the subject of a bankruptcy petition or a receiver or trustee is appointed for the majority of its assets; and (ii) the other party breaches this Agreement and, following fifteen (15) days’ written notice, fails to cure such breach, or (iii) for any or no reason upon no less than thirty (30) days’ written notice to the other party; provided, however, the effective date of termination pursuant to Section 7(a)(iii) shall at no time be earlier than the date on which all projects are completed pursuant to each then-effective SOW, unless the parties otherwise agree in writing.
(b) Effect of Termination. Client shall pay SmallBox for all Services and Deliverables up to the effective date of termination. SmallBox shall provide Client with an invoice for such accrued fees within fifteen (15) days of the effective date of the termination. Client shall pay the invoice within fifteen (15) days of the date of such invoice.
8. Warranty; Disclaimer, Limitation of Liability.
(a) Services and Deliverables. SmallBox represents and warrants that (i) the Deliverables shall perform substantially in accordance with the specifications set forth in a SOW under normal use, and (ii) it will provide the maintenance and support services (if any and as specified in the relevant SOW) in a manner consistent with generally accepted industry standards.
(b) Disclaimer. Except as expressly set forth herein, no warranty is made with respect to the Services or Deliverables or other products or services provided by SmallBox, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights and those arising from a course of dealing or usage of trade. No warranty is made that use of the Deliverables or Services will be error free, that it will operate uninterrupted, that any errors will be corrected, or that the Deliverable’s functionality will meet Client’s requirements.
(c) IN NO EVENT SHALL SMALLBOX BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, OR TORTIOUS CONDUCT RELATING TO, CAUSED BY, OR ARISING OUT OF ANY BREACH OF ITS OBLIGATIONS OR CLIENT’S USE OR INABILITY TO USE THE DELIVERABLES OR SERVICES, EVEN IF SMALLBOX OR CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SMALLBOX ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CLIENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY CLAIM BY CLIENT AGAINST SMALLBOX.
9. Independent Contractor.
SmallBox’s relationship to Client in all matters relating to this Agreement is that of an independent contractor, and SmallBox shall have no right to, and will not, bind, assume or obligate Client for anything in any manner. SmallBox may use independent consultants or subcontractors to provide any of the services to be provided to Client hereunder; all terms of this Agreement shall apply to, and inure to the benefit of, any such subcontractors.
10. Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
11. Choice of Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana. Each of the parties irrevocably submits to the exclusive jurisdiction of the state courts of the State of Indiana and the federal district courts located in the State of Indiana for the purpose of any suit, action or other proceeding related to or arising out of this Agreement.
12. No Waiver.
No failure on the part of any party at any time to require the performance by any other party of any term of this Agreement shall be taken or held to be a waiver of such term or in any way affect such parties’ right to enforce such term, and no waiver on the part of any party of any term of this Agreement shall be deemed a continuing waiver or a waiver of any other term hereof or the breach thereof.
13. Entire Agreement; Modifications.
This Agreement contains the entire understanding among the parties with respect to the subject matter hereof; all representations, promises and prior or contemporaneous understandings between the parties are merged into and expressed in this Agreement; and any and all prior agreements with respect to the subject matter hereof between the parties are hereby canceled. This Agreement may not be amended, modified or supplemented without the written agreement of the parties at the time of such amendment, modification or supplement.
14. Assignment.
Neither this Agreement, nor any right hereunder, may be assigned by either of the parties hereto without the prior written consent of the other party hereto; provided, however, either party shall have the right to assign this Agreement as a result of a merger, consolidation, amalgamation, sale of all or substantially all of such party’s assets or other similar business combination transaction or series of transactions.
15. Captions.
The captions in this Agreement are for convenience and identification purposes only, are not integral part of this Agreement, and are not to be considered in the interpretation of any part hereof.
16. Attorneys’ Fees.
In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the unsuccessful party to such dispute, as determined in the manner set forth in this Agreement, shall pay the successful party all costs, expenses and reasonable attorneys’ fees incurred by the successful party (including, without limitation, costs, expenses and fees on any appeals), and if the successful party recovers judgment in any such action or proceeding, such costs, expenses or attorneys’ fees shall be included as part of the judgment.
17. Severability.
In the event any particular provision or part of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not affect the validity, enforceability or legality of the remaining provisions hereof, and this Agreement shall continue in all respects as if such invalid or unenforceable provision had not been contained herein. If any provision of this Agreement is in conflict with any applicable statute, rule or other law, it shall be deemed, if possible, to be modified or altered to conform thereto or, if not possible, to be omitted herefrom.
18. Notices.
All notices or other documents under this agreement shall be in writing and delivered personally, via email to the other party at its last known email address, or mailed by certified mail, postage prepaid, addressed to the other party at its last known address.