Master Services Agreement
Rev date: Feb 23, 2022
This Master Services Agreement (this “Agreement”) is made as of the date of execution of the Statement of Work (the “Effective Date”), by and between X-Cart Holdings, LLC, a Delaware corporation having its principal place of business at 1860 Barnett Shoals Rd. Ste. 103-590, Athens, GA 30605, United States of America (“Seller Labs”), and you (the “Customer”).
Customer desires to have Seller Labs perform certain services for Customer, subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
RECITALS
Seller Labs through its subsidiaries owns the rights to an e-commerce software (the Software”) and provides support services, web hosting and web programming services related to software.
- The Customer wishes to:
- Enter into a Statement of Work (“SOW”) for custom modifications related to the Software (“Solution Services”) as applicable.
1. SERVICES.
1.1 Statements of Work.
Solution Services. Customer and Seller Labs may execute SOWs, substantially in the form attached hereto as Exhibit A, that describe the specific services to be performed by Seller Labs, including any work product to be delivered (the “Deliverables”) by Seller Labs. Each Statement of Work will expressly refer to this Agreement, and will be subject to the terms and conditions contained herein incorporated herein by reference. In the event of any inconsistency between the terms of this Agreement and those of any SOW, the terms of this Agreement will prevail unless explicitly stated in the applicable SOW (with reference to the specific provisions of the Agreement being superseded). Seller Labs will perform all Solution Services in a timely and professional manner and consistent with industry practices. Specific service level standards may be specified in a SOW. Customer is under no obligation hereunder to procure any minimum amount of Solution Services, nor is either party obligated hereunder to enter into any number of SOWs.
2. FEES AND TAXES.
2.1 Payment.
Customer will pay Seller Labs fees in accordance with the terms set forth in each Statement of Work as applicable. All invoices are due and payable within fifteen (15) days of receipt. If the Statement of Work requires Seller Labs to complete certain milestones, Customer’s payment obligation will be expressly subject to Seller Labs’s completion of such milestones to Customer’s reasonable satisfaction. Unless otherwise specified in the Statement of Work, Customer will not reimburse Seller Labs for any expenses incurred by Seller Labs in connection with performing Services.
2.2 Taxes.
Customer is solely responsible for the payment of all taxes (other than taxes based on Seller Labs’ income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to Seller Labs under this Agreement. Customer will make all payments of fees to Seller Labs free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Seller Labs will be Customer’s sole responsibility, and Customer will provide official receipts issued by the appropriate taxing authority, or such other evidence as Seller Labs may reasonably request, to establish that such taxes have been paid.
3.RELATIONSHIP OF PARTIES.
3.1 Independent Contractor.
Seller Labs and its employees, agents and subcontractors (collectively, “Personnel”) shall be, and at all times during this Agreement shall remain, an independent contractor in relationship to the Customer. Personnel shall not have any rights to the Customer’s usual employee fringe benefits, including, but not limited to, worker’s compensation benefits, and in no event is any contract of agency or employment intended by this Agreement. Seller Labs will perform the Services under the general direction of Customer, but Seller Labs will determine, in Seller Labs’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that Seller Labs will at all times comply with applicable law.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
4.1 Seller Labs’ Proprietary Materials.
The Customer expressly acknowledges and agrees that any and all proprietary materials created by Seller Labs in the scope of providing Services in accordance with any Statements of Work shall be the property of Seller Labs, and Seller Labs shall be the true and lawful owner of all copyrights and other proprietary rights in and to such items and shall be considered to be the sole and exclusive author of such materials. These items shall include, but shall not be limited to any and all Deliverables, work in progress, records, diagrams, notes, drawings, specifications, schematics, documents, designs, improvements, inventions, discoveries, developments, trademarks, trade secrets, customer lists, databases, software, programs, middleware, applications, solutions, (collectively referred to as “Proprietary Materials”) conceived, made or discovered by Seller Labs, solely or in collaboration with others, during the period of this Agreement.
4.2 Customer’s Proprietary Materials.
Notwithstanding the above, Customer shall retain and, Seller Labs shall have no proprietary rights whatsoever in all of Customer’s intellectual property rights in any and all text, images or other components and/or materials owned by Customer, or which Customer has the legal right to use, that are delivered Seller Labs, including but not limited to software, related documentation, Customer marketing material, logos, and taglines (“Customer’s Proprietary Materials”). Seller Labs agrees that shall not use Customer’s Proprietary Materials for any other purpose than those expressly set forth in this Agreement.
5. CONFIDENTIAL INFORMATION
5.1 Confidential Information.
“Confidential Information” shall mean information relating to a party, its business or assets or that of any of its clients, customers, affiliates, subcontractors or other persons that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, inventions, trade secrets, know-how, customer lists, business plans, promotional and marketing activities, and finances), that is or previously has been disclosed by one party (the “Disclosing Party”) to the other party (collectively with its employees, agents, partners, directors, shareholders and any other person with whom such party has dealings in connection with this Agreement or the Confidential Information, the “Receiving Party”); provided, that Confidential Information shall not include any information that:
(i) is or becomes publicly available through publication, inspection of commercially available product, or otherwise without breach of this Section 5, unless further disclosure is otherwise prohibited by law (e.g., the Gramm-Leach-Bliley Act);
(ii) was known to the Receiving Party at the time of its receipt from the Disclosing Party, which knowledge can be demonstrated in writing by the Receiving Party;
(iii) is received from a third party without an obligation of confidentiality to Disclosing Party; or
(iv) can be demonstrated in writing to have been independently developed by the Receiving Party prior to the date hereof without the use or benefit of the Disclosing Party’s Confidential Information or intellectual property.
5.2 Use of Confidential Information.
Each of the parties agrees:
(a) to hold Confidential Information of the Disclosing Party in strict confidence and to preserve and protect such Confidential Information until it is returned or destroyed in accordance with the terms of this Section 5;
(b) to prevent the use of Confidential Information other than in accordance with this Agreement, and not to disclose, discuss, communicate or transmit Confidential Information to others (including, without limitation, to any person within its organization other than as set forth in Section 5.4, below); and
(c) to use Confidential Information solely in connection with this Agreement and the transactions contemplated hereby and not to use the Confidential Information for any other purpose whatsoever, whether for the benefit of Receiving Party or any other person.
5.3 Legally Compelled Disclosure.
If the Receiving Party is requested to disclose Confidential Information of the Disclosing Party or the substance of this Agreement in connection with a legal or administrative proceeding or otherwise to comply with a requirement under the law, the Receiving Party will give the Disclosing Party prompt notice of such request, unless prohibited by law, so that the Disclosing Party may seek an appropriate protective order or other remedy, or waive compliance with the relevant provisions of this Agreement. If the Disclosing Party seeks a protective order or other remedy, the Receiving Party, at the Disclosing Party’s expense, will cooperate with and assist the Disclosing Party in such efforts. If the Disclosing Party fails to obtain a protective order or waives compliance with the relevant provisions of this Agreement, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel determines it is required to disclose, and will use commercially reasonable efforts to obtain confidential treatment of the Confidential Information to be disclosed.
5.4 Receiving Party Personnel.
The Receiving Party will restrict the access and knowledge of Confidential Information to its Personnel who have a need to know for the purposes contemplated by this Agreement. The Receiving Party will ensure that its Personnel comply with this Section 5, are subject to confidentiality and non-use agreements in favor of the Receiving Party that contain terms and provisions comparable to those in this Agreement, and will be responsible for any unauthorized disclosure or use of Confidential Information by any such Personnel.
5.5 Ownership and Return of Confidential Information.
The Confidential Information of the Disclosing Party will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the Confidential Information except for the purposes permitted hereunder and strictly in accordance with the terms of this Agreement. Upon written request from the Disclosing Party, the Receiving Party will promptly return or destroy (in a manner that it cannot be read or reconstructed) all Confidential Information it has received from the Disclosing Party, together with all copies thereof and any other materials or information prepared or developed by the Receiving Party that embodies or incorporates Confidential Information of the Disclosing Party. In the event that such Confidential Information is destroyed, the Receiving Party shall promptly deliver to the Disclosing Party a certificate signed by a proper officer of the Receiving Party attesting to such destruction.
5.6 Injunctive Relief.
Notwithstanding anything to the contrary herein, if the receiving Party breaches or threatens to breach this Section 5, the disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts without the requirement of posting of bond.
6.ADDITIONAL OBLIGATIONS.
6.1 Compliance with Laws.
Each party will comply with all applicable laws, rules, regulations and orders in connection with its performance of this Agreement. Seller Labs will reasonably comply with regulatory agencies having jurisdiction over Customer or its direct and indirect subsidiaries in connection with such agencies’ reviews of Customer.
6.2 Solicitation.
Customer will not recruit any personnel Seller Labs assigns to perform Services until one year after completion of the applicable Services, including initiating personal contact for the purpose of hiring, but not including responding to unsolicited applications. If Customer hires personnel in violation of this provision, Customer will immediately pay Seller Labs as liquidated damages an amount equal to the hired employee’s total compensation for the six months preceding the date of hiring.
7.TERM AND TERMINATION.
7.1 Term.
This Agreement will commence on the Effective Date and will have an initial term of twelve (12) months (“Initial Term”). The Agreement will automatically renew for additional twelve (12) month terms (“Renewal Terms”), unless terminated in accordance with section 7 of this Agreement, and will remain in force and effect for as long as Seller Labs is providing the Software or Hosting Service to the Customer.
7.2 Termination for Breach.
Either party may terminate this Agreement (including all Statements of Work) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof from the non-breaching party.
7.3 Effect of Termination.
(a)Upon the expiration or any termination of this Agreement (except termination of this Agreement pursuant by Customer pursuant to Section 7.2 for breach by Seller Labs), Customer will pay Seller Labs any amounts that are due and payable for Services performed by Seller Labs prior to the effective date of expiration or termination.
(b)Upon the expiration or termination of this Agreement for any reason, Seller Labs will promptly notify Customer of all Confidential Information in Seller Labs’s possession or control and will promptly deliver all such Confidential Information to Customer, at Seller Labs’s expense and in accordance with Customer’s instructions.
7.4 Survival.
The provisions of Sections 4, 5, 7.4, and 8 will survive the expiration or termination of this Agreement.
8. INDEMNIFICATION; DISCLAIMER; LIMITATIONS ON LIABILITY
8.1 Indemnification.
Seller Labs agrees to indemnify and hold harmless the Customer and its Affiliates, current and former officers, directors, employees, and representatives from any awards, liabilities, loss, damages, costs and expenses (including reasonable attorney’s fees) (collectively “Losses”) suffered by Customer
(a) as a result of the gross negligence or willful misconduct of Seller Labs or its subcontractors, or
(b) subject to the other provisions of this Section 8, any claim, action, suit or proceeding brought by a third party against Customer alleging that the use of the Software or Deliverables as contemplated hereunder infringes a U.S. patent issued as of the Effective Date, copyright, registered trademark or trade secret rights of a third party (each, an “Infringement Claim”).
Seller Labs shall pay any damages awarded to a third party in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by Seller Labs in any settlements arising out of such Infringement Claim; provided, however, that
(a) Customer promptly (and in no event later than five (5) calendar days following Customer’s knowledge of such Infringement Claim) gives written notice of the Infringement Claim to Seller Labs,
(b) Customer gives Seller Labs sole control of the defense and settlement of the Infringement Claim (provided, however, that Seller Labs shall not settle any Infringement Claim without Customer’s written consent unless it unconditionally releases Customer from all liability and there is no admission of fault on the Customer’s behalf),
(c) Customer provides to Seller Labs, at Seller Labs’ cost, all reasonable assistance necessary or advisable in the defense of such Infringement Claim, and
(d) the Infringement Claim did not arise as a result of:
(i) the combination, operation, or use of the Software or Deliverables with third party software, services or other products or materials not furnished by Seller Labs,
(ii) the modification by Customer or any third party of the Software or Deliverables;
(iii) Customer’s improper or misuse of the Software or Deliverables (including without limitation, in violation of applicable laws, rules or regulations or this Agreement);
(iv) Seller Labs’s compliance with Customer’s instructions as specified in this Agreement or a SOW;
(v) Seller Labs’s use of trademarks, Customer Data or other materials supplied by Customer,
(vi) any breach or alleged breach by Customer of this Agreement, or
(vii) Customer’s gross negligence or willful misconduct.
Customer shall defend, indemnify and hold Seller Labs, its Affiliates, and their respective equity owners, directors, managers, officers, employees, agents, and representatives, harmless from and against any and all Losses arising out of or related to:
(a) the use of the Software or Deliverables by Customer or their respective employees, agents, or representatives, in a manner inconsistent with this Agreement or published documentation, and/or
(b) the gross negligence or willful misconduct.
In the event a Party seeks indemnification hereunder (the “Indemnitee”), the Indemnitee shall promptly give the Party obligated to provide indemnification (“Indemnifying Party”) written notice of such claim. Providing such notice shall be a condition precedent to the Indemnifying Party’s obligation to provide indemnification hereunder. The Indemnifying Party shall be permitted to control the investigation, preparation, defense and settlement of such claim; provided, however, that the Indemnitee shall be permitted to participate in any such action at Indemnitee’s cost and the Indemnitee shall be permitted to assume control of the investigation, preparation, defense and settlement of such claim in the event the Indemnifying Party fails to diligently prosecute the same. Indemnitee shall provide the Indemnifying Party all reasonably requested assistance with such claim.
8.2 WARRANTY DISCLAIMER.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SOFTWARE AND DELIVERABLES AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY SELLER LABS OR ANY OF ITS LICENSORS OR SUPPLIERS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND SELLER LABS AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER SELLER LABS NOR ANY OF ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE PROVISION OR OPERATION OF THE SOFTWARE AND DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE. USE OF INFORMATION PROVIDED THROUGH THE SOFTWARE AND DELIVERABLES IS SOLELY AT CUSTOMER’S OWN RISK. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SELLER LABS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER OR ANY THIRD PARTY ACCESSING THE SOFTWARE AND DELIVERABLES BY OR THROUGH CUSTOMER IN RELIANCE ON ANY INFORMATION ACCESSED BY OR THROUGH THE SOFTWARE OR DELIVERABLES.
8.3 LIMITATIONS ON LIABILITY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT WITH REGARD TO A PARTY’S OBLIGATION REGARDING A CLAIM OF THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT OR A BREACH OF CONFIDENTIAL INFORMATION), NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST PROFITS HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY. IN NO EVENT SHALL SELLER LABS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM AND/OR SERIES OF CLAIMS, WHETHER RELATED OR UNRELATED, UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE FOR ALL CLAIMS MADE AGAINST SELLER LABS, ITS LICENSORS AND SUPPLIERS AN AMOUNT EQUAL TO THE PRICE CHARGED FOR THE SOFTWARE AND DELIVERABLES BY SELLER LABS.
8.4 Exclusive Remedy.
Notwithstanding anything herein to the contrary, the indemnity provisions of this Section 12 are the sole and exclusive remedy and recourse for monetary recovery by Customer or their respective employees, agents or representative, for claims arising out of or related to this Agreement or the relationship of the Parties hereunder.
9. GENERAL.
9.1 Assignment and Subcontracting.
Seller Labs may not assign this Agreement without the Customer’s express prior written consent. Seller Labs may from time to time use employees and/or subcontractor(s) to deliver the Services without Customer’s express prior written consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns. If any subcontractor(s) is used, Seller Labs shall remain primarily and directly responsible to the Customer for each such subcontractor’s actions and omissions, and for the full performance of the Services in accordance with this Agreement.
9.2 Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, USA, excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Athens, the State of Georgia, USA and the parties hereby irrevocably consent to the personal jurisdiction thereof and venue therein.
9.3 Expedited Procedures.
The parties agree, pursuant to Article 30(2)(b) of the Rules of the ICC, that the Expedited Procedure Rules shall apply irrespective of the amount in dispute.
9.4 Costs for Prevailing Party.
The parties agree that the prevailing party in any arbitration action hereunder shall be entitled to receive, in addition to all other damages and awards, the costs incurred by such party in conducting the arbitration, including reasonable attorneys’ fees and expenses, and arbitration costs.
9.5 Severability.
If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.6 Notices.
All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, by certified mail, or by email and in each instance will be deemed given upon receipt. All notices will be sent to the addresses set forth above or in the signatures section or to such other addresses as may be specified by either party to the other in accordance with this Section.
9.7 Entire Agreement.
This Agreement, together with all Statements of Work, constitutes the complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event of a conflict, the terms and conditions of this Agreement will take precedence over the terms and conditions of any SOW. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
9.8 Waiver.
The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof.
9.9 Counterparts.
This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
