Master Services Agreement
THIS MASTER SERVICES AGREEMENT (“MSA”) is entered into by the signed parties as of the effective date of the associated Services Agreement(s) (as defined herein) (“Services Agreement Effective Date”). The Services Agreement signed by duly authorized representatives of each party identifies responsible parties, signatories, service terms, scope of work, responsibilities of all parties pursuant of the services being contracted, any and all exceptions and exclusions of this MSA and services pricing (“Services Agreement(s)”). “Client” shall include Client’s corporate subsidiaries, as well as corporate parents, affiliates, and other related entities (collectively, “Affiliates”) approved by Gnomon Services to receive Services (as defined herein) under this MSA. For purposes of this MSA the term “Gnomon” shall mean Gnomon Services and Gnomon Productions. or, when applicable, the Gnomon Services entity identified on Client’s invoice. “This MSA” is defined by the MSA revision number identified in the Services Agreement. Gnomon Productions and Client agree to the following terms and conditions:
- Services. All services provided by Gnomon under this MSA (the “Service(s)”) will be described in one or more Services Agreements detailing the Scopes of Work (SOW). The Services Agreement incorporates the terms of this MSA, including “Services Descriptions”, “Technical Specification Forms”, “Statements of Work”, and any other such mutually agreed upon document signed by duly authorized representatives of each of Gnomon and Client. The MSA and each Services Agreement will be interpreted as a single agreement, independent of each other Services Agreement, so that all of the provisions are given as full effect as possible. In no event will the description of Services under any Services Agreement be deemed by implication or otherwise to exclude any Services described in this MSA or another Services Agreement. Services will be delivered per Gnomons Services, Service Level Agreement (“SLA”), which can be found at www.incident.name/SLA. In the event of a conflict between the terms of the MSA and a Services Agreement, the terms of these documents will be interpreted according to the following order of precedence: (1) Services Agreements and (2) the MSA.
- Terms of Purchase
- Requests for Services; Quotes, Change Orders and Acceptance. All orders for Services must specify Gnomon’ quotation (if any), and reference the Service(s) requested and invoice address. All orders are subject to acceptance by Gnomon. If Client orders on-line, Gnomon may issue to Client user names and passwords (the “Purchase Codes”). By accepting and using the Purchase Codes, Client acknowledges the validity of an electronic order, which shall be deemed to be writing for all purposes hereunder, and agrees to be responsible for full payment of any Services ordered using Client’s Purchase Codes. Client is responsible for keeping the Purchase Codes confidential and controlling their use. A Completion Document will be presented at the end of installation of Services. Any outstanding issues at that time must be noted and returned to Gnomon. If the document is not received within seven (7) days, installation is considered complete.
- Prices. The prices charged for Services purchased under this MSA will be as quoted by Gnomon, and shall not increase during the initial term of the mutually agreed upon Services Agreement(s). Gnomon reserves the right to revise pricing if prices for Services are based upon written assumptions and those assumptions are determined inaccurate. If Client and Gnomon are not able to reach agreement on the revised pricing, Client or Gnomon may terminate the applicable Services Agreement without any liability to Client. All prices are exclusive of all applicable country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes. If the Services are being performed on a time and materials basis, any estimates provided by Gnomon are for planning purposes only. Any required deposits are non-refundable.
- Additional Fees; Taxes. Client shall be responsible for all applicable taxes and fees assessed or imposed upon the Services provided or the amounts charged under this MSA, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes related to Gnomon’ net assets or net income or for which Client has provided a valid resale or exemption certificate. Should any payments to Gnomon become subject to withholding tax, then Client shall deduct these taxes from the amount owed to Gnomon and pay the taxes to the appropriate tax authority in accordance with the laws thereof. Client shall promptly provide Gnomon with receipts or other applicable evidence of substantiating the payments as required under the laws of the applicable taxing authority. Gnomon shall not be liable for any withholding tax, penalty, or interest due as a result of Client’s failure to withhold any applicable tax.
- Invoicing and Payment. Client shall pay Gnomon for the Services and Deliverables as detailed in the applicable Services Agreement(s). Prepayment of 100% of set up charges is required for each approved quote. All payments and expenses are due within thirty (15) days after receipt of invoice unless otherwise noted on the mutually agreed upon Services Agreement. A 10% credit may be taken if the full amount of the invoice is paid and received within ten (1) calendar days from the invoice date. A late fee of 2% per month will be charged if payment is not made within thirty (90) days of receipt of invoice. Client shall pay for all third-party products, if any, in full upon the ordering by Gnomon of such products, or, if such products are already in Gnomons possession, upon the delivery of such products to the Client. All third-party products in reference to this MSA will be described to the client in the associated Services Agreement(s). Gnomon will invoice and the Client will pay the costs incurred by Gnomon in the acquisition of the third-party product. A $50.00 fee will be assessed for returned checks.
- Nonpayment. For invoices not paid within thirty (90) days of the invoice date, Gnomon reserves the right to charge Client a late penalty charge of one and a half percent (2%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, Gnomon, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the Services until such payment is received and may decide not to accept additional orders from Client and/or seek collection of all amounts due. Gnomon shall have no liability to Client for any such suspension or termination of Services, or non-acceptance of orders, solely as a result of nonpayment by Client as described in this Section 2.5.
- Purchases by Affiliates. Unless otherwise agreed in writing, any Affiliate who submits an order to Gnomon for Services shall agree to abide by the terms of this MSA. Gnomon, in its sole discretion, may discontinue selling Services to any Affiliate or may require additional payment and/or credit conditions for such Affiliate.
- Purchases from a Third-Party Reseller. This Section 2.7 shall not apply to Clients who purchase Services directly from Gnomon. If Client purchases from a party other than Gnomon (each a “Reseller”), then Client acknowledges that its payment for the Services is subject to the agreement between the Client and the Reseller (the “End-User Reseller Agreement”). Otherwise, Client agrees that this MSA, except for the “Terms of Purchase” provisions above, shall apply to such Client’s use of the Services notwithstanding anything to the contrary in the End-User Reseller Agreement. Gnomon shall not be liable to Client for any representations, warranties, indemnities or damages beyond those set forth in this MSA. Client acknowledges that to the extent Gnomon does not receive payment for the Services from the Reseller; Gnomon shall have the right to suspend or terminate the Services until such payment is received. Gnomon shall have no liability to Client for such suspension or termination of Services and Client shall look solely and exclusively to the Reseller for any and all damages and liability associated with such suspension or termination of the Services.
- Term & Renewal
- The term of this MSA is in accordance with the terms set forth in the mutually agreed upon Services Agreement(s) and will take effect as of the date on which Services is delivered per Section 2.1 of this MSA. Each Services Agreement will continue for term stated, unless otherwise terminated pursuant to this MSA. Notwithstanding any provision to the contrary, any renewal of a Services Agreement will be as set forth in such Services Agreement. Client may (where permitted by law) agree to such renewal of the Services by paying such invoice by its due date or by continuing to use the Services. If Client renews a Services Agreement by continued use of the Services, Client will be invoiced in a manner substantially similar to the initial term of Services.
- Either party may terminate this MSA for convenience by providing at least thirty (15) days prior written notice to the other unless otherwise stated in signed associated Services Agreement(s). Termination of this MSA for convenience will not terminate any outstanding Services Agreement that provides for a specific term over which the Services are to be provided. In such case, this MSA, as incorporated into the Services Agreement and the Services Agreement that provides for a specific term will remain in effect for the remainder of such term. Upon termination of this MSA, all rights and obligations of the parties under this MSA will automatically terminate except for rights of action accruing prior to termination, payment obligations for Services provided prior to termination and any obligations that expressly or by implication are intended to survive termination. Either party may terminate an individual Services Agreement if the other party commits a material breach of such agreement and the breach is not cured within thirty (15) days of receipt of written notice from the injured party. Client may terminate an individual Services Agreement for convenience at any time by providing at least thirty (15) days prior written notice to Gnomon and is liable for any remaining term cost obligation of the individual Services Agreement. Termination of one or more Services Agreements will not terminate this MSA.
- Third-Party Products & Warranties
- “Third Party Products” means any third-party hardware, services or software. Some manufacturers’ warranties or service contract terms and conditions for Third Party Products may become void if Gnomon or anyone else, other than the manufacturer or its authorized representative, provides services for or works on the hardware or software (such as providing maintenance and repair services). GNOMON DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE GNOMON SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in writing between Client and Gnomon, Third Party Products shall be exclusively subject to terms and conditions between the third party and Client. Gnomon shall have no liability for Third Party Products and Client shall look exclusively to the third-party provider for any damages or liability with respect to the provision of such Third-Party Products. Except as otherwise specifically agreed to in a Services Agreement, Client authorizes Gnomon (or otherwise obtains the rights for Gnomon) to copy, install and modify, when necessary and as required by the Services Agreement, all Third-Party Products, including software, to be used in the Services or to be copied or stored for subsequent re-installation of a backup system or data. Client warrants to Gnomon that it has obtained any licenses, consents, regulatory certifications or approvals required to give Gnomon and its subcontractors or employees such rights or licenses to access, copy, distribute, use and/or modify (including creating derivative works) or install any Third-Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products.
- Proprietary Rights
- Deliverables. Except as otherwise specifically agreed to in a Services Agreement, Gnomon will retain exclusive ownership in all Deliverables created by Gnomon hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed by Gnomon under this MSA. Subject to payment in full for the applicable services, Gnomon grants Client a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country(ies) in which Client does business and solely for Client’s internal use. “Deliverable(s)” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations that are prepared by Gnomon or its subcontractors during performing the Services.
- Tools & Software. Gnomon will retain all intellectual property rights with respect to the processes, tools and software related to the services. Any use by Client, including the execution, reverse engineering, recompilation, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted by Gnomon during the term of Services is prohibited
- Client Responsibilities
It is the Client’s responsibility to backup data on Client’s system(s). Client acknowledges that Gnomon’ performance and delivery of the Services are contingent upon: (A) Client providing safe and hazard-free access to its personnel, facilities, equipment, hardware, software, network and information for Services to be performed at Client’s location, and (B) Client’s timely decision-making, notification of relevant issues or information and granting of approvals or permissions. Client will promptly obtain and provide to Gnomon any required licenses, approvals or consents necessary for Gnomon’ performance of the Services.
In the performance of the Services, Client and Gnomon may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to software, product plans, marketing and sales information, Client lists, “know-how,” or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”). Confidential Information may not be shared with third parties unless such disclosure is to personnel of Gnomon or Client (or Client’s affiliates), including employees, agents and subcontractors, on a “need-to-know” basis about its performance of this MSA, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality, and shall only make such information available to its employees on a “need-to-know” basis. The foregoing shall not include information, which, (A) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient, (B) is received by the recipient from a source other than a party to this MSA without restriction, or (C) a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party. The obligations with respect to Confidential Information shall continue for three (3) years from the date of disclosure.
- Support Services
When Services consist of repair, such Services shall be those repair services that are necessary because of any existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this MSA. Preventive maintenance is not included. Repairs necessitated by software problems, or because of alteration, adjustment, or repair by anyone other than Gnomon (or its representatives) are not included. Unless otherwise expressly provided in a Services Agreement, Services do not include repair of any system or system component which has been damaged as a result of: (A) accident, misuse, or abuse of the system or component (such as, but not limited to, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Gnomon (or its representatives), (B) an act of God and or nature such as, but not limited to, lightning, flooding, tornado, earthquakes, and hurricanes, or (C) the moving of the system from one geographic location or entity to another.
- LIMITED WARRANTY & LIMITATION OF LIABILITY
- Limited Warranty. GNOMON WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, GNOMON (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE ” GNOMON PARTY(IES)”) MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION THE GNOMON PARTIES MAY MAKE.
- Limitation of Liability. EXCEPT WITH RESPECT TO OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION) AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, (I) NEITHER THE GNOMON PARTIES NOR CLIENT WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR ABOUT THE SERVICES PROVIDED BY GNOMON. WHETHER DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E) SERVICES, GNOMON PRODUCTS OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY CLIENT; AND (II) NEITHER PARTY’S AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH ANY SERVICE PROVIDED PURSUANT TO THIS MSA SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR ONE (1) MONTH PERIOD. EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, THE FEE FOR THE SERVICES PROVIDED HEREUNDER WOULD BE HIGHER
Gnomon shall defend, indemnify and hold harmless Client from any third-party claim or action that the Services or any Deliverables (excluding Third-Party Products) prepared or produced by Gnomon and delivered pursuant to this Agreement infringe or misappropriate that third party’s patent, copyright, trade secret, or other intellectual property rights enforceable in the country(ies) in which the Services or Deliverables are sold to Client by Gnomon (“Indemnified Claims”). In addition, if Gnomon receives notice of a claim that, in Gnomon’ reasonable opinion, is likely to result in an adverse ruling, then Gnomon shall at its option, (A) obtain a right for Client to continue using such Service or Deliverable; (B) modify such Service or Deliverable to make it non-infringing; (C) replace such Service or Deliverable with a non-infringing equivalent; or (D) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated refund for the allegedly infringing Deliverable. Notwithstanding the foregoing, Gnomon shall have no obligation under this Section for any claim resulting or arising from (A) Client’s modifications of the Services or Deliverables that were not performed by or on behalf of Gnomon; (B) the combination, operation or use of the Service or Deliverable in connection with a third-party product or service (the combination of which causes the infringement); or (C) Gnomon’ compliance with Client’s written specifications or directions, including the incorporation of any software or other materials or process provided by or requested by Client. Client shall defend, indemnify and hold Gnomon harmless from, any third-party claim or action arising out of (A) the failure of Client to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals associated with Client-provided technology, software or other components related to the service, as well as software directed or requested by Client to be installed or integrated as part of Services, or (B) any inaccurate representations regarding the existence of an export license or any allegation made against Gnomon due to Client’s violation or alleged violation of applicable export laws, regulations, and orders. Each party agrees to indemnify and hold harmless the other party from any third-party claim or action for personal bodily injuries, including death, resulting from the indemnifying party’s gross negligence or willful misconduct resulting from the Services (excluding Third-Party Products) provided hereunder. This section states each party’s exclusive remedies for any third-party claim or action, and nothing in this MSA or elsewhere will obligate either party to provide any greater indemnity to the other.
- Important Additional Terms
- Independent Contractor Relationship; MSA Assignment; Subcontracting. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this MSA. Gnomon has the right to assign, subcontract or delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under this MSA, by operation of law or otherwise, if Gnomon shall remain responsible for the performance of Services under this MSA, and Client has the right to assign this MSA and any or all Services Agreements in the event of a merger, acquisition or sale of all or substantially all of the assets of Client with written notification to Gnomon. Otherwise, neither party may assign this MSA without the permission of the other.
- Entire Agreement; Severability; Section Headings. This MSA and Services Agreements is the entire agreement between Gnomon and Client with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements. No amendment to or modification of this MSA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this MSA is void or unenforceable, the remainder of this MSA will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.
- Force Majeure. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations as described in section 2.4 of this MSA) under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other party may immediately terminate the applicable Services Agreement by giving written notice to the delayed party.
- Notices. Notice to either party under this MSA must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (incl. facsimile or electronic) as specified in writing and will be effective upon receipt. Gnomon Services, Attn: Contracts, 463 Union Street #B, San Francisco, CA 94133, and if to Client, the address specified in the associated Services Agreement(s).
- Governing Law, Forum and Language. THE PARTIES AGREE THAT THE MSA, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CLIENT AND GNOMON arising from or relating to the MSA (including Services Agreements), its interpretation, or the breach, termination or validity thereof, the relationships which result from this MSA (including Services Agreements) or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW. The parties agree that all claims, causes of action or disputes (regardless of theory) arising out of or relating to the MSA (including Services Agreements) shall be brought exclusively in the courts located in San Francisco, California. Client and Gnomon agree to submit to the personal jurisdiction of the courts located within San Francisco, California, and agree to waive all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. This MSA (including Services Agreements) will be interpreted and construed in accordance with the English language.
- Dispute Resolution. Client and the Gnomon Parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this MSA, Gnomon’ advertising, or any related purchase (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.
- Limitation Period. Neither party may institute any action in any form arising out of this MSA more than two (2) years after the cause of action has arisen.
- Updates. Gnomon reserves the right to update its MSA at any time, effective upon posting an updated version at www.incident.name/CMSA; however, Client’s rights and obligations shall be as provided in the version of the MSA executed by Client or available to Client at the time of Client’s purchase of Services or, when applicable, Client’s renewal of Services.
- Counterparts. If a signature block is appended hereto, this MSA may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.