MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is entered into by and between Klizer Inc., a Texas corporation having its principal place of business located at 1901 E Palm Valley Blvd, Suite 109, Round Rock, TX 78664 (“Klizer”) and you (“Client”) as of the date of the applicable Statement of Services. By signing the applicable Statement of Work, you agree to the terms of this Agreement. Klizer and Client are sometimes referred to jointly as the “parties” or singularly as a “party.”
This Agreement contains the general terms and conditions under which Klizer will provide consulting and professional services to the Client. These terms and conditions are incorporated by reference into, and deemed to be a part of, any subsequent specific engagement for consulting and professional services made by Client with Klizer. Now, therefore, for the considerations and covenants set forth below, Klizer and Client agree as follows.
1. SERVICES TO BE PERFORMED
1.1 Implementation: Klizer will provide consulting and professional services (“Services”) for defined projects (“Projects”) in accordance with the terms and conditions of this Agreement and as referenced in the Statement of Work (“SOW”) attached hereto. The Parties may subsequently issue additional SOWs, which will come into effect upon the Parties’ execution(s) thereof and will continue to be implemented in accordance with the terms of this Agreement unless otherwise agreed in writing.
1.2 Changes in Scope: If, in the course of an engagement, Client desires to make changes to any work specifications on any SOW issued under this Agreement (including but not limited to changes in the scope of work, amount of hours, work to be performed, delivery schedule, or different goals), Client will notify Klizer, and both Parties will agree in writing on necessary adjustments to the terms of the engagement (including but not limited to price and schedule adjustments) before any such changes are incorporated into said SOW.
1.3 Client Responsibilities: Client agrees to make all reasonably necessary internal arrangements and provide all reasonably necessary information to facilitate the timely performance of Project and provide a sufficient number of qualified personnel who are capable of performing Client’s duties, responsibilities, and obligations under this Agreement. Client shall provide full access to systems necessary for Klizer to perform the work in the SOW. If any issues are to arise, it is understood that there may be an impact to Project schedules.
2. FEES
2.1 Fees: All Services are billed according to the fees and payment structure set forth in an applicable SOW. Any work performed without an agreed fixed fee will be billed and paid on a time and materials basis using Klizer’s then current rate.
2.2 Payment: Client agrees to pay Klizer according to the terms of each SOW entered into by the Parties under this Agreement.
2.3 Invoicing: Klizer will submit invoices to Client according to the terms of the applicable SOW. Client agrees to pay each invoice according to the terms of the applicable SOW. Klizer may put on hold its provision of the Services to Client while payments on submitted invoices remain delinquent.
2.4 Late Fees: Delinquent invoices will be subject to a late fee of one and a half percent (1.5%) per month on any outstanding balance, or alternatively the maximum permitted by law, plus any legal fees incurred in the collection process.
2.5 Expenses: In addition to the foregoing, Client will reimburse Klizer for pre-approved out-of-pocket expenses, including, but not limited to, expenses for travel and lodging reasonably incurred by Klizer in the performance of its obligations under any SOW, which will be included in Klizer’s invoices to Client.
2.6 Refunds: Klizer does not provide refunds on Projects that have been initiated. Klizer’s business model calls for Klizer to provide the Services upon initiation and full or partial refunds are not possible based on the amount of work done.
3. TERM
The term of this Agreement will commence on the Effective Date and will continue until the earlier of the time specified in the applicable SOW or terminated by either Party pursuant to Section 4 (“Term”).
4. TERMINATION
4.1 Termination Conditions: Either Party may terminate this Agreement immediately upon written notice if:
(a) the other Party breaches a material term or condition of this Agreement and such breach remains uncorrected for fifteen (15) days; provided, however, that:
(i) in the case of non-payment, the correction time will be only ten (10) days following written notice specifying the breach of non-payment; and
(ii) Client can terminate the Agreement under this Section 4.1(a) only after full payment of all the outstanding invoices, work done but not invoiced due to any reason whatsoever (calculated on a time and materials basis using Klizer’s then current rate) and other amounts including but limited to any demobilization expenses, if any, incurred or to be incurred by Klizer (“Amounts Due”); or
(b) the business of the other Party is declared bankrupt or the other Party enters into voluntary or is entered into involuntary bankruptcy proceedings or similar proceedings; the other Party becomes insolvent or makes an assignment for the benefit of creditors; or, the business of the other Party ceases to exist in the normal course.
4.2 Termination for Convenience: This Agreement may be terminated for any reason other than as stated in Section 4.1, above, upon thirty (30) days written notice by either Party; provided that the Client can terminate under this Section 4.2 only after full payment of all Amounts Due. The effective date of termination will be deemed to be the latest date on which any Project in progress as of the date of notice is completed.
4.3 Klizer Obligations Upon Termination: Upon receiving notice of termination, the Klizer’s obligation to provide new or additional Services, if any, will terminate.
4.4 Client Obligations Upon Termination: Client agrees that (i) all fees for Services performed, and all related expenses incurred, will accrue through the effective date of termination, and (ii) Client is obligated to pay Klizer, without any demur or recourse, all fees and expenses incurred including but not limited to by demobilization expenses whether incurred or to be incurred by Klizer until the effective date of termination.
4.5 No Consequential Damages: Upon termination of this Agreement for any reason, Klizer will not be liable, because of such termination, for consequential damages, including but not limited to claims for loss of profits, goodwill, tangential expenditures or commitments in connection with the business of Client, or for any reason whatsoever flowing from such expiration or termination.
4.6 Confidential Information: Upon a written request following termination, Client will promptly return Klizer’s Confidential Information, and all copies thereof, or destroy such Confidential Information and certify that it has been done.
4.7 Survival of Obligations: The following obligations will survive termination of this Agreement for any reason:
(a) obligations to make payments of all Amounts Due;
(b) obligations relating to confidentiality and ownership of intellectual property; (c) obligations relating to indemnification and limitation of liability; (d) obligations regarding jurisdiction, contract interpretation, and dispute adjudication. The non disclosure obligations set forth in Section 5 will survive the expiration or termination of this Agreement for a period of five (5) years. Termination of this Agreement will not relieve either Party of any obligations arising out of this Agreement prior to or upon the date of such termination.
5. CONFIDENTIALITY
Client may be granted access to Klizer’s Confidential Information during the Term of this Agreement. Client agrees that it will not use or disclose to any third party any Confidential Information of Klizer except as permitted by this Agreement or as authorized by Klizer’s prior written consent. “Confidential Information” means all non-public information regardless of its form. Confidential Information may include (but is not limited to) business methods, business plans, concepts related to Klizer’s business, finances, provider network(s), policies, procedures, processes, information technology systems, pricing, techniques, inventions, customers, marketing plans, prospects, proposed businesses, products or services.
6. INTELLECTUAL PROPERTY
Nothing in this Agreement will be construed to convey to Client any rights of ownership in and to Klizer’s proprietary systems, know-hows or services that Klizer has developed to implement and enhance the productivity and effectiveness of its Services. All right, title, and interest in Klizer’s systems, documents, source codes, algorithms, data, database schemas, APIs, and any other materials conceived or developed by Klizer (“Klizer Materials”) will at all times remain the exclusive property of Klizer(including, but not limited to, rights to patent, trade secrets, trademarks, copyrights, inventions, improvements, discoveries, software, concepts and other works of authorship, data, and know-how whether or not patentable or protectable). The Parties recognize that in the course of providing Services under this Agreement, (i) Klizer may use or incorporate certain parts of the Klizer Materials into a Project, and (ii) Klizer may make changes to the Klizer Materials as a result of the Project. Klizer retains all rights, title, and interest in and to such Klizer Materials, including all improvements therein.
7. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, KLIZER, AND ITS AFFILIATES, MAKE NO OTHER REPRESENTATIONS OR WARRANTIES. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO KLIZER OBLIGATIONS HEREUNDER. WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. KLIZER DOES NOT WARRANT THAT THE SERVICES OR THE WORK WILL OPERATE WITHOUT INTERRUPTION, OR BE FREE OF ERRORS OR INFRINGEMENT.
8. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 5 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ARISING FROM BREACH OF CONTRACT OR FROM NEGLIGENCE OR STRICT LIABILITY, OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA, LOST REVENUE OR PROFITS, LOST SAVINGS, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED THE AMOUNTS PAID BY CLIENT TO KLIZER AS FEES FOR THE SERVICES GIVING RISE TO SUCH CLAIM UNDER THIS AGREEMENT.
9. FORCE MAJEURE
Neither Party hereto will be liable for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, earthquake, war, attack, strikes, revolutions, lack or failure of transportation facilities, laws, or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, will in no event be excused but will be suspended only until the cessation of any cause of such failure. If an event of force majeure obstructs performance of this Agreement for more than five (5) business days, the Parties will consult with each other to determine whether this Agreement should be modified or terminated. The Party facing an event of force majeure will use reasonable efforts to minimize its effects and will promptly notify the other Party of any such case of force majeure.
10. GENERAL
10.1 Governing Law: This Agreement will be construed and controlled by the laws of the State of Texas, without regard to the choice or conflicts of law provisions of any jurisdiction, and the Parties consent to the exclusive jurisdiction and venue in the federal and state courts sitting in and for the State of Texas.
10.2 Severability and Waiver: If any provision of this Agreement is held illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. The waiver by either Party of a breach of any provision contained in this Agreement must be in writing and in no way will be construed as a waiver of any subsequent breach of any such provision or the waiver of the provision itself.
10.3 Successors and Assign:. This Agreement may not be transferred or assigned by either Party, or by operation of bankruptcy law, without the prior written consent of the other Party, which consent will not be unreasonably withheld. In any case of assignment or transfer, which may be permitted under this Agreement, this Agreement will be binding upon and inure to the benefit of the successors of the Parties.
10.4 Independent Contractors: Klizer is an independent contractor and no agency, partnership, joint venture, or employee relationship is intended or created by this Agreement. Neither Party has the power to obligate or bind the other Party.
10.5 Non-Solicitation and Restriction on Hiring: During the Term of this Agreement and for a period of one (1) year thereafter, Client will not directly or indirectly, either alone or in association with others, without the written consent of Klizer, solicit, or permit any of its affiliates to solicit, any employee or contractor of Klizer that provided any services to Client during the Term of this Agreement to leave his or her employment.
10.6 Notice: Any notices required or permitted hereunder will be given to the appropriate Party at the address specified above or by email as specified in the below signature block, or through such other means as the Parties agree in writing. Notice will be deemed given: upon personal delivery; upon confirmation of receipt if sent by facsimile; upon confirmation of receipt if sent by email; or five days after the date of mailing if sent by certified or registered mail, postage prepaid.
10.7 Attorney’s Fee: In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be awarded reasonable attorney’s fees, together with any costs and expenses incurred to resolve the dispute and to enforce the final judgment.
10.8 Counterparts: This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed one instrument. A facsimile signature will be deemed an original.