THIS MASTER SERVICE AGREEMENT (“AGREEMENT”) APPLIES TO ANY USE OF THE CONSULTING SERVICES (AS DEFINED BELOW) OFFERED BY DELEGATE-TEAM, INC. (“DELEGATE“) HEREUNDER. BY PURCHASING, ACCESSING, OR USING THE CONSULTING SERVICES, YOU AND THE ENTITY YOU REPRESENT (TOGETHER, “CUSTOMER”) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS HEREIN.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Consulting Services. Delegate will provide the services set forth in each quote, order form, or statement of work (each an “Order Form”) executed by the parties (“Consulting Services”). “Consulting Services” include any access to Delegate’s web-based platform. Customer will provide any assistance and cooperation necessary to facilitate the Consulting Services or specified in an Order Form.
2. Access to Delegate Platform
- 2.1. Access to the Service. During the Term and subject to Customer’s compliance with the terms of this Agreement, Delegate shall provide Customer with non-exclusive access to the Delegate Platform and grants Customer the right to access and use the Delegate Platform solely for its own business purposes.
- 2.2. Users. Access to the Delegate Platform is made available to an unlimited number of users designated by Customer, with each user (a “User”) having unique log-in credentials. Customer will ensure that Users maintain the confidentiality of their log-in credentials and will be responsible for Users’ compliance with this Agreement.
3. Billing and Payments.
- 3.1. Fees. Customer shall (a) pay to Delegate the fees described in each Order Form and (b) reimburse such expenses as Delegate reasonably incurs in provision of the Consulting Services. The Consulting Services are priced on the basis of the number of consultants assigned to Customer, and is charged on a per consultant per month basis. Unless otherwise set forth in an Order Form, fees are payable monthly in advance. Fees charged are as-described on the applicable Order Form and are non-refundable and non-cancellable.
- 3.2. Modifying Your Subscription. If you choose to add additional Consultants, any incremental cost will be prorated over the remainder of the then-current Subscription Term (as defined in the applicable Order Form), payable upon the date of such change. For each subsequent Subscription Term, unless otherwise agreed in writing, your subscription will renew for the total number of Consultants, including Consultants added during the prior Subscription Term. There are no refunds or credits for decreases the number of Consultants during the Subscription Term.
- 3.3. Late Charges. Late payments are subject to interest charges of 1.5% per month, or if lower, the maximum amount allowed by law (plus all costs of collection, including attorneys’ fees).
- 3.4. Taxes. Customer is solely responsible for payment of any taxes resulting from this purchase of Consulting Services. If any such taxes are required to be withheld, Customer shall pay an amount to Delegate such that the net amount payable to Delegate after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
- 3.5. Billing Disputes. Customer agrees that it shall notify Delegate within 60 days of receipt of an invoice from Delegate if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted.
4. Intellectual Property Rights & Restrictions.
- 4.1. Work Product. “Work Product” means information (such as reports) generated specifically for Customer hereunder. Customer will own the copyrights in the Work Product (other than any pre-existing Delegate intellectual property). If there is any pre-existing Delegate intellectual property incorporated into any Work Product, Customer will have a non-exclusive license to use such intellectual property solely as necessary to use the Work Product into which it is incorporated. Except as set forth above, no intellectual property rights are assigned or transferred by Delegate in connection herewith.
- 4.2. Delegate Intellectual Property. Delegate shall retain all intellectual property rights in the Delegate Platform, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Additionally, Customer acknowledges that Delegate provides similar services to many customers and that some services will be similar to the Work Product provided to Customer, and accordingly Customer hereby grants Delegate a non-exclusive, irrevocable, perpetual, royalty-free license to use, reproduce, sell, publicize or otherwise exploit the Work Product in its discretion, including providing similar work product to other customers of Delegate, provided that no use of such Work Product contains any personally identifiable information of Customer, its Users, or permits the identification of Customer in any way.
- 4.3. Feedback. Customer hereby grants Delegate a non exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, gift ideas or categories, or service improvements given by Customer pertaining to Consulting Services and/or the Delegate Platform.
- 4.4. Restrictions. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Delegate Platform; (ii) not represent that it possess any proprietary interest in the Delegate Platform; (iii) not directly or indirectly, take any action to contest Delegate’s intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Delegate.
5. Customer Content.
- 5.1. Ownership. All data, information, files or other materials and content that Customer makes available to Delegate for the purpose of receiving the Consulting Services or utilizing the Delegate Platform (“Customer Content”) shall remain the sole property of Customer.
- 5.2. License to Delegate. Customer hereby grants Delegate a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, to the extent required to perform the Consulting Services and provide the Delegate Platform.
6. Delegate Personnel.
- 6.1. During the term of this Agreement, and for one year thereafter, Customer (i) will not directly or indirectly encourage or solicit any employee or contractor of Delegate to leave Delegate for any reason, and (ii) will not hire or otherwise engage any such employee or contractor of Delegate, unless Customer pays to Delegate a fee equal to 100% of the annual salary offered to such Delegate employee or contractor. Such fee shall be deemed to be a referral fee and upon payment thereof, Customer shall be entitled to hire such Delegate employee or contractor.
- 7.1. Nondisclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement.
- 7.2. Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement. In addition, either party may disclose this Agreement and its terms to its advisors and potential investors and acquirers. Each party hereto shall be free to use for any purpose any information in non-tangible form which may be retained by persons who have had access to Information, including ideas, concepts, know-how or techniques contained therein resulting from access to or work with any information disclosed by the other party hereunder. Neither party hereto 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 any such information.
8. Representations and Warranties.
- 8.1. Warranties.
- 8.1.1. Each party represents and warrants that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
- 8.1.2. Customer additionally represents and warrants that (a) the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights and (b) Customer will use the Service is compliance with all applicable laws and regulations.
- 8.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, DELEGATE PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DELEGATE DOES NOT WARRANT THAT (I) THE CONSULTING SERVICES, THE DELEGATE PLATFORM OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR (II) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE CONSULTING SERVICES OR THE DELEGATE PLATFORM.
- 9.1. Customer’s Indemnities. Customer shall defend, indemnify and hold harmless Delegate and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting, to the extent payable to unaffiliated third parties: damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; (b) Customer’s breach of its warranties under Section 8.1 of this Agreement; or (c) Customer’s use of the Delegate Platform in any manner that violates this Agreement or applicable laws, rules or regulations.
- 9.2. Delegate’s Indemnities. Delegate shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Work Product or the Delegate Platform infringes any intellectual property right of a third party.
- 9.3. Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such Claim; (b) sole control over the defense and settlement of such Claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent.
10. Limitation of Liability.
- 10.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL DELEGATE BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT DELEGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY DAMAGES CAUSED BY CUSTOMER’S USE OF THE DELEGATE PLATFORM.
- 10.2. MAXIMUM AGGREGATE LIABILITY. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO DELEGATE DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
11. Term; Termination.
- 11.1. Term. This Agreement shall commence on the date the date the first Order Form is executed by parties (“Effective Date”) and shall remain in effect until terminated as set forth below (the “Term”). Each Order Form will have the term set forth thereon. If no term is specified, the Order Form will have a 12-month term. Except as otherwise specified in an Order Form, each Order Form will automatically renew for successive terms of equal length to its initial term unless notice of non-renewal is given by either party at least 30 days prior to the end of the then-current term. Either party may terminate this Agreement on 5 days written notice if there are no Order Forms in effect.
- 11.2. Termination for Cause. Either party may terminate this Agreement (i) for the other party’s material breach, if the breaching party does not cure such breach within 30 days after receipt of written notice (10 days in the case of non-payment), effective upon the expiration of such 30 day period, (provided that, such notice provides sufficient detail regarding the breach and states the intent to terminate if not cured), or (ii) upon notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
- 11.3. Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Service and this Agreement shall terminate and be of no further force or effect, provided that he following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay fees incurred prior to termination; (ii) Section 3 (Delegate Intellectual Property Rights & Restrictions), (iii) Section 7 (Confidentiality); Section 8.2 (Disclaimer of Warranties); Section 9 (Indemnification); Section 10 (Limitation of Liability); and Section 12 (Miscellaneous).
- 12.1. Amendments. This Agreement may only be amended by written agreement signed by both parties.
- 12.2. Governing law. This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles. All disputes will be subject to final and binding arbitration in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service. To the extent the JAMS Streamlined Arbitration Rules & Procedures are available (or any successor thereto) – they will be used. The arbitration will take place in San Francisco, California. Notwithstanding the foregoing, claims for injunctive or other equitable relief may be brought by either party, immediately at any time, in court. To the extent a claim cannot legal be arbitrated (as determined by a JAMS arbitrator), it will be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- 12.3. Class Action Waiver. Both parties agree that all claims brought against the other must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
- 12.4. Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
- 12.5. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given 1 business day after being sent by email. All legal notices to Customer must be mailed via registered mail to the address provided by Customer in an Order Form (or as otherwise identified by Customer); provided that, notices for failure to make payments may be send via email. All legal notices to Delegate must be mailed via registered mail to: 5214 Diamond Heights Boulevard, San Francisco CA 94131 Attn: Legal. Legal notices to Delegate will only be deemed legally received by Delegate when received by physical mail, regardless of an earlier received email.
- 12.6. Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
- 12.7. Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
- 12.8. Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
- 12.9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., http://www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
- 12.10. Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by Delegate of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Delegate.