Utiliware Master Service Agreement
Master Service Agreement
This MASTER SERVICES AGREEMENT (the “Agreement”) sets out the terms and conditions under which Utiliware Corporation (“Utiliware”) with address at 3830 Valley Centre Drive, Suite 705-295, San Diego California. Utiliware will provide certain information technology, consulting and related services (the “Services”) to the customer (“Customer”) identified in the statement of work (“SOW”) referencing this Agreement, such SOW having been entered into between Utiliware and Customer (individually, a “Party” and collectively, the “Parties”). By executing the SOW, the Parties hereby agree to the terms and conditions contained in this Agreement.
In consideration of these mutual promises and covenants, the Parties hereby agree as follows:
- Words importing the singular include the plural and vice versa, as the context may require.
- The use of headings and the division of this Agreement into sections are for convenience of reference only and will not affect the interpretation of this Agreement.
- “Hereof”, “hereto” and “hereunder” and similar expressions refer to this Agreement as a whole.
- “Includes” and “including” means “including, without limitation”.
2. Term; Termination
- Unless earlier terminated in accordance with section 2(b) below, the term of this Agreement will begin on the Effective Date and expire upon completion of the Services set forth in the applicable SOW (the “Term”).
- This Agreement may be terminated at any time by either Party upon: (i) at least thirty (30) days’ written notice to the other Party for any or no reason; (ii) written notice, if the other Party breaches any material term of this Agreement and such breach remains uncorrected for fifteen (15) business days following written notice from the other Party; or (iii) upon written notice in the event that the other Party is adjudged bankrupt, or a receiver is appointed on account of its insolvency; provided that in each case the Agreement will continue to govern for the purposes of any outstanding SOWs.
- Upon any termination, Customer will pay Utiliware for all Services performed and all Deliverables provided, and all accrued charges and costs incurred up to the effective date of termination.
3. Statement of Work
- Each SOW will set out:
- the Services to be provided by Utiliware to Customer;
- any applicable written material created by Utiliware for Customer in connection with the Services (the “Deliverables”). Deliverables expressly exclude Products (as defined below);
- the fees payable by Customer to Utiliware; and
- such additional terms and conditions that may be necessary.
- Each SOW will be incorporated into and governed by this Agreement and will become effective upon execution by an authorized representative of each Party. Material changes to the price, scope, dates, responsibilities, or other provisions in the SOW, will be agreed upon in writing by the Parties by way of a new SOW or a change request form. This Agreement will take precedence in any conflict or inconsistency between this Agreement and a SOW (except to the extent that a term of a fully executed SOW expressly amends a term of this Agreement for the purposes of that SOW only).
- Entities which are directly or indirectly controlling, controlled by or under common control (each, an “Affiliate”) with Customer may enter into SOWs under this Agreement provided that such Affiliate has approved credit terms with Utiliware. If credit terms are not approved, Customer and such Affiliate will be jointly and severally liable for the payment obligations of Affiliate in relation to such SOW.
- Customer may purchase third party hardware, software and subscription products (including software licenses, software as a service and other cloud computing products) and services in respect of such products (including maintenance, support or warranty services) (the “Products”) from Utiliware, either separately from or in connection with a SOW. Provisions specific to Products are set forth at https://www.utiliware.com/terms-and-conditions-for-products .
4. Warranty; Acceptance
- Utiliware warrants that the Services will be performed in a good and workmanlike manner, and in accordance with generally accepted industry standards applicable to such services. Utiliware will re-perform, at its expense, any Services it provided which did not comply with this warranty brought to its attention within five (5) business days following the completion/closeout of the Services, following which the Services are deemed accepted by Customer. This will be Customer’s sole and exclusive remedy for a breach of the warranty provided in this Section.
- Customer will accept or reject Deliverables in writing within five (5) business days of receipt, otherwise such Deliverable will be deemed accepted by Customer. Customer will clearly state in writing the reasons for any rejection. Within five (5) business days of a notice of rejection, Utiliware will present a commercially reasonable corrective plan of action to Customer and will then resubmit the corrected Deliverable to Customer. This will be Customer’s sole and exclusive remedy for rejected Deliverables under this Section.
- Customer may not reject any Service or Deliverable if the grounds for rejection are based, in whole or in part, on: (i) Customer’s use of a Service or Deliverable in a manner not permitted or contemplated under this Agreement or the SOW; (ii) modification of any Service or Deliverable other than by Utiliware; (iii) the use or combination of any Service or Deliverable with materials not supplied by Utiliware; (iv) information supplied by Customer to Utiliware that is included in or relied upon to provide any Service or Deliverable; or (v) Customer’s negligence, breach or willful misconduct.
- TO THE FULLEST EXTENT PERMITTED BY LAW, UTILIWARE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLE QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
5. Fee; Payment; Taxes
- Customer will pay Utiliware the fees set forth in the applicable SOW, such payment to be made by wire transfer or certified check, unless a different payment method is agreed to by Utiliware in writing. Customer will pay the reasonable travel and living expenses of Utiliware personnel that are incurred in the performance of Services. Customer will also be responsible for all applicable taxes, except for taxes imposed on Utiliware’s income or arising from the employment relationship between Utiliware and its personnel.
- Subject to Customer receiving approved credit terms from Utiliware, Customer will pay invoiced amounts within thirty (30) days of the invoice date. If credit terms are not provided, all amounts are payable in advance of delivery of the applicable Services.
- Customer agrees to pay a $25 processing fee for each check submitted by Customer that is returned by the financial institution for any reason, including insufficient funds (plus any late charges until Utiliware receives payment). Overdue invoices will be subject to the lesser of: (i) an interest rate of 1.5% per month, or (ii) the maximum amount allowed by law, calculated monthly from the date payment was due until the date payment is made, without prejudice to any other rights, or remedies which Utiliware may have under this Agreement, at law or in equity. Payments by Customer will thereafter be applied first to accrued interest and then to the principal unpaid balance. Customer will reimburse Utiliware for all costs (including, without limitation, reasonable legal fees) associated with collecting payments that are past due.
- In addition to the termination rights set forth in Section 2, and without limiting any other rights or remedies which Utiliware may have under this Agreement, at law or in equity, Utiliware may by written notice suspend work under a SOW as of the date specified in such notice upon Customer’s failure to pay Utiliware any amount required to be paid to Utiliware.
- To the extent that confidential and proprietary information of a Party (“Confidential Information”) is exchanged or received in connection with this Agreement, the receiving Party agrees to maintain the confidential nature of the Confidential Information of the disclosing Party in its possession by taking reasonable steps to protect such Confidential Information from unauthorized use, access and disclosure; such steps will be at least equal to those taken by the receiving Party to protect its own Confidential Information. Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that becomes publicly available other than by a breach of this provision by the receiving Party; (ii) information previously known by or developed by or for the receiving Party without use of or access to the Confidential Information of the disclosing Party; or (iii) information that the receiving Party rightfully obtains without restrictions on use and disclosure.
- The receiving Party may disclose the Confidential Information of the disclosing Party to its or its Affiliates’ employees or independent contractors provided that such party has a need to know and is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section. The receiving Party may also disclose Confidential Information of the disclosing Party in accordance with a judicial, government or agency order or law, provided that the receiving Party required to make such disclosure will, to the extent permitted, provide the disclosing Party with reasonable prior notice of such disclosure and will comply with any applicable protective order or equivalent that applies to such disclosure. In addition to the foregoing, Utiliware may disclose the Confidential Information of Customer to its third-party vendors, partners, or subcontractors provided that such party: (i) is providing Services in connection with this Agreement; (ii) has a need to know the information; and (iii) is required to maintain the confidentiality of such information on terms no less stringent than those contained in this Section.
- The receiving Party will be liable to the disclosing Party for any breach of the receiving Party’s confidentiality obligations committed by any person or entity to whom the receiving Party is permitted to disclose the Confidential Information of the disclosing Party pursuant to this Section. Upon request by the disclosing Party, the receiving Party will return all originals, copies, records, notes and summaries of the Confidential Information or, at the disclosing Party’s option, certify the destruction of the same. Notwithstanding the foregoing, the receiving Party may retain archival copies of the Confidential Information for legal, regulatory or compliance purposes, and nothing will require the erasure, or destruction of back-up media made in accordance with its document-retention procedures.
7. Intellectual Property Rights
- Intellectual property rights, including patents, copyrights, trade secrets, trademarks and service marks and all similar proprietary rights (“Intellectual Property Rights”) that belong to Customer, will remain the sole and exclusive property of Customer.
- Customer will own all Deliverables except as follows: Utiliware will retain ownership in all working papers, pre-existing materials and any general skills, know-how, processes, or other Intellectual Property Rights (including a non-Customer-specific version of any Deliverables) which Utiliware may have discovered or created independently or as a result of the Services (“Utiliware Information”). Utiliware grants Customer a non-exclusive, non-transferable license (without any right to sublicense except to Customer’s Affiliates and permitted assigns on the same terms as those set out herein) to use such Utiliware Information included in the Deliverables for Customer’s own internal use as part of such Deliverables.
- Utiliware Information and any working papers and internal documentation prepared by or for Utiliware in connection with the Services, Deliverables or this Agreement will remain the sole and exclusive property of Utiliware. Utiliware Information is Confidential Information of Utiliware.
- Utiliware is providing the Services and Deliverables solely for Customer’s internal use and benefit. The Services and Deliverables are not for a third party’s use, benefit or reliance and Utiliware disclaims any contractual or other responsibility or duty of care to others based upon the Services or Deliverables. Customer acknowledges that Utiliware provides similar services to other Customers and that nothing in this Agreement will be construed to prevent Utiliware from carrying on such business or from acquiring, licensing, marketing, distributing, developing for itself or others or having others develop similar products, services or materials performing the same or similar functions as the Services and Deliverables contemplated by this Agreement or any SOW.
- Customer hereby grants to Utiliware a limited, non-exclusive, right and license to Customer’s Intellectual Property Rights that are necessary for Utiliware to perform the Services. Customer acknowledges and agrees that Utiliware may transfer the foregoing license to its subcontractors as necessary to perform the Services.
- Utiliware will indemnify Customer against any losses, damages and costs (including reasonable legal fees) awarded against Customer to the extent arising from a third party claim, action or proceeding brought against Customer alleging that the use of a Deliverable by Customer infringes a third party’s Intellectual Property Right valid in the United States (an “IP Claim”). Should the Deliverable become, or in the opinion of Utiliware be likely to become, the subject of an IP Claim, Utiliware may, at its reasonable option: (i) procure for Customer the right to use the Deliverable; (ii) replace or modify, in whole or in part, the Deliverable to make it non-infringing and substantially comparable in functionality; or (iii) require the return of the Deliverable and promptly refund to Customer any fees paid by Customer to Utiliware which are reasonably attributable to such Deliverable. Notwithstanding the foregoing, Utiliware assumes no liability for an IP Claim based on the: (A) use of a Deliverable in a manner not permitted or contemplated under the Agreement or SOW; (B) modification of any Deliverable other than by Utiliware; (C) use or combination of any Deliverable with third party materials; (D) information supplied by Customer or Customer’s authorized third party to Utiliware; or (E) Customer’s negligence, breach or willful misconduct. THE FOREGOING STATES Utiliware’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR IP CLAIMS.
- The foregoing obligations under this Section are conditioned upon the indemnified Party: (i) notifying the indemnifying Party promptly in writing of any such action (provided that the indemnifying Party’s obligations will only be diminished to the extent that a delay prejudices the indemnifying Party’s defense of such matter); (ii) giving the indemnifying Party sole control of the defense and/or settlement of such action; and (iii) giving the indemnifying Party all reasonable information and assistance (at the indemnifying Party’s expense).
9. Limitation of Liability
- EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 OR CUSTOMER’S BREACH OF THE LICENSE TO USE Utiliware INFORMATION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES, DAMAGE OR EXPENSES OF ANY KIND, OR FOR BUSINESS INTERRUPTION, LOST OR CORRUPTED DATA, LOST REVENUE, LOST PROFITS, LOST SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE, OR EVEN IF SAME WERE REASONABLY FORESEEABLE.
- EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT AND THE APPLICABLE SOW(S) WILL BE LIMITED TO THE DOLLAR VALUE OF THE FEES PAYABLE UNDER THE SOW(S) APPLICABLE TO THE CLAIM.
- c. IN NO EVENT WILL Utiliware BE LIABLE FOR CUSTOMER’S FAILURE TO SUFFICIENTLY BACK UP OR PROTECT ITS DATA OR FOR ANY CLAIM MADE BY CUSTOMER OR ANY THIRD PARTY TO THE EXTENT SUCH CLAIM ARISES OUT OF (i) MATERIALS PROVIDED BY CUSTOMER TO Utiliware FOR USE IN DEVELOPING, PERFORMING OR CUSTOMIZING ANY SERVICES OR DELIVERABLES OR (ii) CUSTOMER’S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER THE AGREEMENT OR APPLICABLE SOW.
- d. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ABOVE LIMITATIONS WILL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM, INCLUDING BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY, AND WILL SURVIVE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. THE ALLOCATIONS OF LIABILITY IN THIS SECTION REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND Utiliware’S COMPENSATION UNDER THIS AGREEMENT REFLECTS SUCH ALLOCATIONS.
10. Employee Solicitation
- Neither Party will solicit for employment, nor directly or indirectly induce the termination of employment, of any of the other Party’s personnel during the term of such personnel’s assignment to or work under a SOW and for the period of twelve (12) months following termination of such assignment. The foregoing restrictions will not apply if a Party’s personnel seeks employment with the other Party as a result of a response to a general solicitation (such as in a newspaper, trade journal, online posting or other advertisement or job fair).
11. Personnel Subcontractors
- Utiliware will attempt to honor Customer’s request (if any) for specific Utiliware personnel to perform the Services, subject to scheduling and staffing considerations; provided, however, that Utiliware reserves the right to determine which of its personnel will be assigned to perform the Services, and to replace or reassign such personnel during the term of any SOW. Utiliware will ensure that its personnel comply with all reasonable instructions and directions issued by Customer when on Customer’s premises. Utiliware may delegate performance of certain Services to any Utiliware-selected independent contractor or subcontractor, provided that Utiliware will not be relieved of any of its duties, obligations or responsibilities hereunder by use of such independent contractor or subcontractor.
- Force Majeure. Except for a Party’s obligation to pay the other Party any amount owed in accordance with this Agreement, neither Party will be deemed to be in default hereunder or liable for a failure or delay in performance that is caused, in whole or in part, by circumstances including, acts of God, acts, omissions or delays of carriers, embargo, explosion, fire, flood, order of civil or military authority, disease, strike, labor disputes, lockout, war, Product unavailability, malfunction or failure of third party systems or services (including telecommunications services), electrical or environmental system malfunction, or any other causes beyond its control where such event renders impossible or delays a Party’s performance (each, a “Force Majeure Event”). If a Force Majeure Event occurs, the impacted Party will promptly notify the other Party in writing and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Delivery and performance dates will be equitably extended to the extent of any such delays.
- No Agency. This Agreement will not be construed to create an agency, representative, joint venture, employment relationship, or partnership between the Parties. The Parties are and remain independent contractors. Neither Party has the authority to bind the other or to incur any liability or otherwise act on behalf of the other.
- Assignment and Binding Effect. Neither Party may assign its interest in this Agreement or a SOW to a third party without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed; provided however that either Party may, without the consent of the other Party, assign this Agreement or a SOW to an Affiliate of such Party. This Agreement and SOW will be binding upon and enureto the benefit of the Parties and their respective successors and permitted assigns.
- Governing Law. This Agreement, any SOW and any claims arising out of or related to this Agreement or any SOW will be governed by: (i) laws that govern the interpretation, construction, and enforcement of this Agreement and all matters, claims or disputes related to it, including tort claims, and (ii) the courts or arbitration bodies that have exclusive jurisdiction over any of the matters, claims or disputes contemplated in sub-section (i) above, will each depend on where Reseller is domiciled, as set forth in San Diego California. In instances where the International Chamber of Commerce is designated below as the court or arbitration body with exclusive jurisdiction of such matters, claims or disputes, then the parties hereby agree that (x) all matters, claims or disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“Rules”) by one or more arbitrators appointed in accordance with the Rules, (y) judgment on the award rendered by such arbitration may be entered in any court having jurisdiction, and (z) this arbitration clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Severability. If any provision in this Agreement or a SOW is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to such provision or part thereof and all other remaining provisions or parts thereof will continue in full force and effect.
- Survival. Sections 4, 5, 7, 9, 10 and 12 will survive the termination or expiry of this Agreement.
- Notices. Any notice required to be given to Utiliware will be in writing and will be personally delivered or sent by courier or email as follows:
3830 Valley Centre Drive
Suite 705-295 San Diego California 92130
Attention: Legal Department
In the case of Customer, notices will be sent to the address above, or to such other address as Customer may by written notice indicate to Utiliware. Any such notice given by either Party in accordance with the foregoing will be deemed to have been received by the other Party, on the next business day following the date of delivery or transmission.
- Entire Agreement. This Agreement and each fully executed SOW, collectively constitute the entire agreement between the Parties concerning the subject matter hereof and supersede all written or oral prior agreements or understandings with respect thereto, including, without limitation, any proposals, price quotes, or purchase order terms and conditions.
- Amendment and Waiver. No amendment or variation to this Agreement will be effective unless in writing and signed by authorized representatives of both Parties. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all the Parties to this Agreement entitled to grant the waiver. For greater certainty, forbearance or indulgence by either Party in any regard will not constitute a waiver of any provision of this Agreement.
Last Updated: 2023-06-19