Master Service Agreement
1. Services
1.1 The services to be performed by ATC for each project will be mutually agreed in a Project Work Order or order form (“Project Work Order”, “PWO” or “Order”), and each Project Work Order will contain: (a) a description and scope of the services being purchased; (b) the estimated timelines and completion dates, if applicable; and (c) a description of fees and payment schedule, if any (the “Services”). If applicable, the Project Work Order may contain additional terms and conditions. A signed Project Work Order may be modified only by mutual written agreement of the parties. Expansion of the scope or duration of Services will require an amendment to the PWO and modification of the applicable fees.
1.2 In the event Client purchases third party products and Services from or through ATC under this Agreement, such products shall be subject to the third party’s standard terms, including, as applicable, sale, license, service and support terms, as provided to Client by ATC or the third party.
1.3 ATC shall commit and utilize such resources, as it reasonably considers sufficient to complete the Services set forth in an applicable Project Work Order. The relationship of ATC to Client will be that of an independent contractor and neither this Agreement nor the Services to be rendered hereunder will for any purpose whatsoever (i) create an employer-employee relationship between ATC or its employees or subcontractors and Client, or (ii) make ATC an agent of Client.
2. Proprietary Rights
Each party shall retain ownership of its pre-existing intellectual property and all derivatives, inventions, modifications and improvements thereto, regardless which party created such derivatives, inventions, modifications and improvements. Nothing in this Agreement shall be construed as granting to Client any rights or license to any third party intellectual property, unless specifically set forth in a Project Work Order or other third party agreement provided by ATC to Client. Client will retain ownership of all Client data, information, reports, material and documentation provided by Client to ATC in connection with this Agreement or any Project Work Order hereunder. Unless otherwise set forth in a Project Work Order, all work, deliverables, materials and documentation created and delivered by ATC pursuant to the Services under a Project Work Order will be owned by ATC (“Deliverables”), provided that ATC hereby grants Client a non-exclusive license to use the Deliverables for its internal business purposes.
3. Fees; Payment Terms; Taxes
Fees for Services and products shall be set forth in the Project Work Order, and unless otherwise set forth in the Project Work Order, payment terms are net thirty (30) days from the date of invoice. If mutually agreed in a Project Work Order, Client will reimburse ATC for all reasonable travel and related expenses incurred in the performance of Services, with such expenses invoiced monthly in arrears. Fees are exclusive of taxes, which shall be itemized on ATC’s invoices, to the extent applicable, and shall be paid by Client to ATC unless Client provides a valid tax exemption certificate.
4. Confidential Information and Data
4.1 Either party may from time to time disclose (the “Disclosing Party”) to the other party (the “Receiving Party”) certain Confidential Information (as hereinafter defined) received from the Disclosing Party. For a period of five (5) years from the termination of this Agreement, the Receiving Party shall protect the Confidential Information received from the Disclosing Party from unauthorized dissemination, using the same degree of care that the Receiving Party ordinarily uses with respect to its own proprietary information, but in no event with less than reasonable care. The Receiving Party shall use the Confidential Information received from the Disclosing Party only to accomplish the purpose of this Agreement, and shall limit the disclosure of the Confidential Information received from the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information received from the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. Notwithstanding the foregoing, Confidential Information may be disclosed if such disclosure is required by law or by the order or a court of similar judicial or administrative body; provided, however, that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto.
4.2 For purposes of this Agreement, the term “Confidential Information” shall mean: (a) a party’s product plans, trade secrets, software, documentation, designs, costs, prices and names; non-published financial information, marketing plans, business opportunities, personnel, research, development or know-how; (b) any other information designated by the Disclosing Party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure and reduced to writing and designated as confidential in writing within thirty (30) days; and (c) the terms and conditions of this Agreement, including without limitation all Statements of Work and the projects, milestones and fees set forth therein, as well ATC’s performance or non-performance of the Agreement; provided, however that “Confidential Information” will not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (ii) is known and has been reduced to tangible form by the Receiving Party at the time of disclosure and is not subject to restriction; (iii) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (iv) is lawfully obtained from a third party who has the right to make such disclosure; or (v) is released for publication by the Disclosing Party in writing.
4.3 The Receiving Party shall return to the Disclosing Party, or, at the option of the Disclosing Party, destroy and erase all Confidential Information received from the Disclosing Party in tangible form upon the written request of the Disclosing Party.
4.4 In relation to certain Services, Client may be required to provide ATC with access to Client or third party information and data. Client shall retain and own all rights, title and interest in and to any and all such information and data provided, input, or uploaded to the Services by or on behalf of Client or in connection with the Services (“Client Data”). Client grants to ATC and its affiliates a non-exclusive, non-transferable license to use Client Data to perform and improve the Services. ATC is committed to having technical, administrative, and system safeguards in place to secure any Client Data that Client provides to ATC in connection with this Agreement. ATC has implemented industry standard procedures, practices and infrastructure to protect all Client Data. ATC handles and protects all Client Data, including personally identifiable information, in compliance with all applicable data protection laws.
Notwithstanding the foregoing, Client is responsible for the accuracy, completeness, quality, integrity, legality, reliability and appropriateness of all Client Data provided to ATC or uploaded to the Services. Client acknowledges that ATC is not responsible for verifying the accuracy, completeness or legality of Client Data. Client shall ensure that Client Data and the provision thereof do not: (a) violate any foreign, federal, state or local law or regulation; (b) infringe, misappropriate or otherwise violate any third party IPR; (c) violate any third party privacy or confidentiality rights or violate data protection or privacy regulations; (d) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory; or (e) contain any virus or other malicious code.
5. Limitations of Liability; Warranties; Disclaimer
5.1 ATC’S ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATED TO ANY PRODUCT OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE FEES ACTUALLY PAID TO ATC UNDER AN APPLICABLE PROJECT WORK ORDER GIVING RISE TO THE CLAIM.
5.2 IN NO EVENT SHALL ATC HAVE ANY LIABILITY TO CLIENT OR A THIRD PARTY WITH RESPECT TO OBLIGATIONS UNDER THIS AGREEMENT OR A PROJECT WORK ORDER (REGARDLESS OF THE FORM OF ACTION, INCLUDING, BUT NOT LIMITED TO ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION AND BREACH OF WARRANTY), OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OR PROFITS OR OTHER MONETARY LOSS, OR LOSS OR INTERUPTION OF DATA OR COMPUTER TIME, EVEN IF ATC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT.
5.3 Warranties; Remedies; Disclaimer. ATC represents and warrants that it will provide Services in a professional, workmanlike manner in conformance with the Project Work Order and will comply with all applicable laws and regulations applicable to its business and the performance of Services. In the event Client notifies ATC in writing of a non-conformity in the Services within thirty (30) days of completion of the Services, ATC at its expense will promptly remedy the non-conformity.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING OR RELATING TO THE SERVICES OR PRODUCTS PROVIDED HEREUNDER OR TO ANY ATC MATERIALS FURNISHED TO CLIENT HEREUNDER OR IN CONNECTION HEREWITH. ATC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF SOFTWARE PRODUCTS, WHETHER MADE BY ATC EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, WILL BE DEEMED TO BE A WARRANTY BY ATC FOR ANY PURPOSE.
6. Term and Termination
6.1 This Agreement will commence on the Effective Date and unless terminated in accordance with the terms hereof, will continue with respect to any Project Work Order until completion of the Services set forth therein.
6.2 This Agreement and any PWO may be terminated by either party upon written notice, if the other party breaches this Agreement or PWO and fails to cure such breach within thirty (30) days from the date of receipt of such notice from the non-breaching party. Upon termination, ATC will be entitled to payment with respect to charges earned and reimbursable expenses and any other termination related charges as set forth in a Project Work Order incurred up to the effective date of the termination. In addition, if the Agreement is terminated by ATC due to Client’s breach, Client will pay all reasonable costs incurred by ATC that are reasonably required in connection with the orderly cessation of the Services, including any fees for which ATC has become committed to the extent it is unable to terminate its commitment without cost or penalty. This Agreement and any PWO, including without limitation orders for third party products and Services and managed Services provided by ATC, may not be terminated by Client for convenience.
6.3 Except as otherwise expressly set forth in this Agreement, the provisions of Sections 2, 3, 4, 5, 6.2, 6.3 and 7 shall survive the termination, cancellation or expiration of this Agreement.
7. General
Client may not assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without ATC’s prior written consent. A waiver of any breach of this Agreement will not constitute a waiver of any future breach of a similar or different nature. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all disputes arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Ohio, excluding all choice of law provisions, and shall be subject to the exclusive jurisdiction of the federal and state courts located in Butler County, Ohio. This Agreement supersedes all other agreements, proposals, representations and other understandings regarding the subject matter of this Agreement. The terms and conditions of any purchase order or other instrument issued by Client or its agent in connection with this Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement are null and void and will not be binding on ATC. In the event of a conflict between any provision of this Agreement and any applicable Project Work Order, the provisions of the Project Work Order shall prevail. All notices permitted or required under this Agreement will be sent to the recipient party’s address stated above in this Agreement (as may be modified in writing) by certified mail, return receipt requested, or receipted overnight carrier. Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference.