Master Services Agreement
THIS MASTER SERVICES AGREEMENT (this “Agreement”) governs all Services provided by LOGIC SPEAK INC., a Georgia corporation (“Logic Speak”) to the customer identified in an Order (“Customer”).
BY EXECUTING OR ACCEPTING THE LOGIC SPEAK ORDER OR BY ALLOWING LOGIC SPEAK TO PROVIDE YOU ANY SERVICES (DEFINED BELOW), YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERNING THE PROVISION OF SERVICES TO YOU BY LOGIC SPEAK. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY.
Accordingly, in consideration of the mutual terms and conditions set forth in this Agreement, and other good and valuable consideration, the sufficiency of which the parties acknowledge, the parties agree as set forth in this Agreement.
1. DEFINITIONS. As used in this Agreement and in addition to any other terms defined herein, the following defined terms have the following meanings:
1.1 “Services” means all services provided by Logic Speak to Customer.
1.2 “Order” means a document mutually agreed by the parties that describes the Services that Logic Speak will perform, such as a written order or statement of work.
2. SERVICES.
2.1 Services.
(a) Logic Speak will provide the Services to Customer specified in one or more Order(s).
(b) Any Services performed pursuant to agreements either prior to or at the time of the execution of an Order shall be governed by the terms and conditions of this Agreement to the same extent and with the same effect as if the Services had been performed after the execution of an Order.
2.2 Additional Services. Any Services performed by Logic Speak upon request by Customer which are outside the scope of any Services described in an Order shall be governed by the terms and conditions of this Agreement and will be billed to Customer at Logic Speak’s then current time and materials rates.
2.3 Amendments. Any material modifications to an Order (including without limitation modifications to the fees or Services) shall be made by written amendment executed by both parties to this Agreement. Such amendments shall become part of this Agreement.
2.4 Cooperation. The parties shall cooperate and provide information as is reasonably necessary for the timely completion of the Services. Customer shall provide Logic Speak with access to Customer’s facilities, software, systems and data, information, office space and support materials as reasonably required by Logic Speak to perform its duties hereunder (collectively, “Customer Materials”). Customer warrants that it owns or has acquired rights to all proprietary interests in the Customer Materials necessary for Logic Speak to perform the Services hereunder.
2.5 Control. Logic Speak has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all Services to be performed by Logic Speak hereunder. Logic Speak agrees that any access to Customer’s premises will be subject to any applicable regulations, lease restrictions, and applicable workplace security, administrative, safety, and other policies and procedures of Customer regarding those premises.
3. COMPENSATION.
3.1 Fees and Expenses. Unless otherwise set forth in the applicable Order, Customer agrees to pay all applicable fees in US Dollars. Logic Speak shall invoice Customer weekly for nonrecurring services and once monthly for recurring services. All invoices will be delivered to Customer via email only and are due upon receipt. Customer shall make payment in full according to the terms of the Order or within seven days of receipt unless otherwise noted. Unless otherwise set forth in the applicable Order, Recurring services will be invoiced and must be paid prior to the beginning of each month whether or not client has received an invoice from Logic Speak. The parties may vary the terms of this Section in the applicable Order. Customer shall also reimburse Logic Speak for travel and out-of-pocket expenses reasonably incurred in performing the Services. Customer may not withhold or set-off any amounts due under this Agreement. Logic Speak, at its sole option, may suspend performance of any and all Services without liability therefore if payment upon any invoice is not received from Customer prior to or upon its due date.
3.2 Late Fees. A late fee shall be charged by Logic Speak on overdue accounts and any other amounts not paid to Logic Speak as provided under this Agreement at the rate of one and one-half percent (1-½%) per month or the maximum amount allowed by law, whichever is less in addition to a thirty-five dollar ($35.00) processing fee, commencing 45 days after the date of the invoice.
3.3 Taxes. The fees, expenses and all other amounts due to Logic Speak as set forth in this Agreement are net amounts to be received by Logic Speak, exclusive of all taxes, duties, and assessments, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, withholdings, or assessments, incurred by Customer or imposed on Logic Speak in the performance of this Agreement or otherwise due as a result of this Agreement. This paragraph shall not apply to taxes based solely on Logic Speak’s income. Logic Speak is solely responsible for payment of any employment related taxes for Logic Speak’s personnel.
4. CONFIDENTIALITY.
4.1 Definitions. In the performance of this Agreement, either party may disclose to the other certain Proprietary Information. For the purposes of this Agreement, (a) “Proprietary Information” means Trade Secrets and Confidential Information that are clearly marked or identified in writing at the time of delivery as being either a Trade Secret or Confidential Information; (b) “Trade Secrets” means trade secrets as defined under law; and (c) “Confidential Information” means information that is of value to its owner and is treated as confidential other than Trade Secrets. Proprietary Information may include, without limitation, all information of a disclosing party regarding its customers and their accounts, all financial information, business plans, customer lists, procedures, formulas, discoveries, inventions, improvements, innovations, concepts and ideas.
4.2 Nondisclosure. Both parties acknowledge and agree that the Proprietary Information shall remain the sole and exclusive property of the disclosing party or a third party providing such information to the disclosing party. The receiving party agrees to hold the Proprietary Information disclosed by the other party in strictest confidence and not to, directly or indirectly, copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information for any purpose whatsoever other than as expressly provided by this Agreement. The disclosure of the Proprietary Information does not confer upon the receiving party any license, interest, or rights of any kind in or to the Proprietary Information, except as expressly provided under this Agreement. Subject to the terms set forth herein, (a) the receiving party shall use the Proprietary Information of the disclosing party only as necessary to fulfill its obligations and exercise its rights under this Agreement, and (b) shall disclose Proprietary Information to only those employees, consultants, advisors and agents who are bound by written confidentiality obligations applicable to such Proprietary Information that are consistent with and no less stringent than those required of the receiving party pursuant to this Agreement, and (c) shall not otherwise disclose the Proprietary Information to a third party without the written consent of the disclosing party. The receiving party shall protect the Proprietary Information of the disclosing party with the same degree of protection and care the receiving party uses to protect its own Proprietary Information, but in no event less than reasonable care. With regard to Trade Secrets, the obligations in this Section shall continue for so long as such information constitutes a Trade Secret under applicable law. With regard to Confidential Information, the obligations in this Section shall continue for the term of this Agreement and for a period of two (2) years thereafter.
4.3 Exclusions. Nothing in this Section shall prohibit or limit the receiving party’s use of information if (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the receiving party; (iii) the receiving party can demonstrate such information was in its possession prior to the time of disclosure by the disclosing party; (iv) the information becomes available to the receiving party from a third party which is not legally prohibited from disclosing such information; (v) the receiving party can demonstrate the information was developed by or for it independently without the use of such information; (vi) disclosure is required under applicable law or regulation; or (vii) such information consists of information in non-tangible form, including ideas, concepts, know-how or techniques, which is retained in the mind of a person or persons who has had access to the Proprietary Information, and who has made no effort to refresh his or her recollection in anticipation of or in conjunction with the use thereof (“residuals”). Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. Notwithstanding the foregoing, the term “residuals” shall not mean any information the use or creation of which would infringe the other party’s now existing or future copyrights or patents, nor shall this provision be deemed to grant to either party a license under the other party’s copyrights or patents.
4.4 Publicity. Logic Speak may use Customer’s name, trademark(s) and logo(s) solely for inclusion in any Logic Speak customer list and for a press release announcing the engagement. Logic Speak shall make no other use of Customer’s name and any Customer trademark(s), trade name(s) and logo(s) without the prior approval of Customer, which consent shall not be unreasonably withheld.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Mutual. Each party warrants and represents that it has the authority to enter into this Agreement and that its performance of this Agreement will not violate any agreement by which it is bound.
5.2 Services. Logic Speak warrants to Customer that the Services will be performed in a professional and workmanlike manner. In the event of a breach of Section, Customer shall promptly deliver a written notice (a “Notice”) thereof to Logic Speak, but not later than thirty (30) days from the date on which such Services were performed or such Work Product was delivered. The Notice shall describe the breach in sufficient detail to allow Logic Speak to correct such deficiencies or errors (the “Deficiencies”) or re-perform the Services. Within thirty days of receiving the Notice, Logic Speak will use reasonable commercial efforts to correct the Deficiencies so that the Services substantially conforms to the warranty set forth in this Section. Provided that the breach is the fault of Logic Speak, any effort spent in correcting the deficiencies or errors will be done at no charge to Customer. If Logic Speak is unable to remedy the breach of the above warranty in a reasonable period of time after reasonable commercial efforts to do so, Customer may terminate the applicable Order, in which event, Customer shall be entitled to recover the fees paid to Logic Speak for the deficient portion of such Services. This Section constitutes Customer’s sole and exclusive remedy for breach of the warranty set forth in this Section.
5.3 Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH ABOVE, LOGIC SPEAK DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO CUSTOMER OR ANY OTHER PARTY WITH RESPECT TO THE SERVICES OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED AND DISCLAIMED.
6. LIMITATION OF LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL LOGIC SPEAK OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER, ANY OF ITS AFFILIATES OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, REVENUE OR GOODWILL IN ANY WAY ARISING FROM OR RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF LOGIC SPEAK HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL LOGIC SPEAK’S LIABILITY FOR ANY DAMAGES TO CUSTOMER, ANY OF ITS AFFILIATES OR TO ANY THIRD PARTY EVER EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO LOGIC SPEAK WITH RESPECT TO THE ORDER UNDER WHICH THE CLAIM FOR DAMAGES IS MADE IN THE PREVIOUS THREE MONTHS.
7. TERM AND TERMINATION.
7.1 Term. This Agreement shall be in effect during the term of all Order(s) and shall govern all Services provided by Logic Speak to Customer. Each Order will have its own term. For each Order renewal term, the Order fees will renew at Logic Speak’s then-current rates unless otherwise set forth in the applicable Order.
7.2 Termination for Cause. Either party may terminate an Order at any time upon giving written notice as follows:
(a) In the event that the other party fails to discharge any obligations or remedy any default under this Agreement or an Order for a period of thirty (30) days after the notifying party has given the other party written notice specifying such failure or default, and such failure or default is not cured during this thirty (30) day period; or
(b) In the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium.
7.3 Termination for Nonpayment. Notwithstanding the foregoing, in the event that Customer defaults in the payment when due of any amount due to Logic Speak hereunder and does not cure such default within ten days of receipt of invoice, then Logic Speak may, by giving written notice thereof to Customer, terminate the applicable Order(s) as of a date specified in such notice of termination.
7.4 Upon termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force and effect.
8. EARLY TERMINATION CHARGES.
8.1 Except for Customer’s proper termination of an Order under Section 7.2 above, or as otherwise expressly provided in the applicable Order, in every other instance in which an Order terminates before the end of the applicable Order term, Customer is responsible to pay an early termination charge (“Early Termination Charge”) as liquidated damages and a reasonable approximation of Logic Speak’s loss from early termination. The Early Termination Charge is due upon and payable within seven (7) days from Customer’s receipt of the invoice. The amount of the Early Termination Charge shall be calculated as follows:
8.2 If, after both parties have signed an Order and termination occurs before any Services have been delivered, Customer shall be liable for $2,000.
8.3 If termination occurs during the current term of the Order (i.e. the initial term or any renewal term): (a) all outstanding nonrecurring fees plus (b) 100% of the average of the previous three months (or the maximum number of months if less than three) multiplied by the months remaining in the current order term.
9. NON-SOLICITATION. Customer will not, for a period equal to the earlier of (i) one (1) year after a person has ceased to work for Logic Speak or (ii) the term of this Agreement and one (1) year thereafter, directly or indirectly, solicit for itself or any third party, any person employed by Logic Speak who provided Services to Customer to leave that employment or to provide, independently or with others, services to Customer unless prior written authorization is obtained from Logic Speak. Should Customer breach this Section or hire or contract with an employee of Logic Speak (the “Former Employee”) during the time period set forth in the previous sentence, Customer shall pay Logic Speak a placement fee amounting to the Former Employee’s salary and benefits for the prior twelve (12)-month period. Both parties agree that damages pursuant to this Section may be difficult or impossible to ascertain, and that the placement fee set forth in the previous sentence is a reasonable pre-estimate of the applicable damages and shall be deemed liquidated damages and not a penalty.
10. GENERAL PROVISIONS.
10.1 Relationship of Parties. Logic Speak is an independent contractor to Customer, and this Agreement shall not be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. Customer shall have the sole and full responsibility for determining its business requirements and that the Services enumerated in the Order will meet its needs.
10.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors, and assigns as permitted by this Agreement.
10.3 Assignment. This Agreement and all rights and obligations may not be assigned in whole or in part by either party without the prior written consent of the other, except that this Agreement may be assigned by either party without consent to another entity in connection with (i) a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of such party, or (ii) a sale of stock or other equity interest of such party in connection with a public placement offering.
10.4 Force Majeure. Except for any payment obligations hereunder, neither Logic Speak nor Customer shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event outside its reasonable control, including, but not limited to, an act of God, war, or natural disaster.
10.5 No Waiver. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent to any prior or subsequent breach.
10.6 Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.
10.7 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent to the parties to this Agreement at their addresses set forth herein or to such other address as either party may substitute by written notice to the other, delivered in person, by certified mail with return receipt required, or by recognized overnight courier.
10.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, USA, without regard to its rules regarding conflict of laws. Exclusive venue for actions related to the subject matter hereof shall be in the Georgia state and federal courts located in Fulton County, Georgia. In any action or proceeding to enforce rights under this Agreement, Logic Speak shall be entitled to recover collection costs, court costs and attorneys’ fees. Customer will strictly comply with all applicable laws and regulations relating in any way to the use of any Services.
10.9 Entire Agreement. This Agreement and the applicable Order represents the entire understanding between the parties hereto with respect to the subject matter set forth herein, and supersedes all negotiations, agreements, contracts, commitments and understandings, both verbal and written between Logic Speak and Customer. Except as provided below, no modifications, additions, or amendments to this Agreement shall be effective unless made in writing as an addendum to this Agreement and signed by duly authorized representatives of the parties. Notwithstanding, from time to time, Logic Speak may modify this Agreement, provide that such changes will only become effective for existing Orders upon renewal of the applicable Order term. It is Customer’s obligation to access and read those changes. In any event, continued provision of the Services will constitute Customer’s acceptance of the version of the Agreement in effect at the time the next renewal term of the applicable Order. If a purchase order or similar document is required by Customer, the parties agree that no terms of the purchase order will modify or become a part of the Agreement between the parties.