This Master Services Agreement (MSA) contains the standard terms and conditions under which App Solve Incorporated (“Company”) will provide the Deliverables and Services (collectively, “Work Product”) to Client set forth in the statement of work accompanying this MSA (“SOW”, together with the MSA, the “Agreement”).
Both parties agree as follows:
This Agreement is the entire agreement between Company and Client with respect to the Work Product to be performed hereunder, and it supersedes all prior and/or contemporaneous agreements and understandings with respect hereto, whether oral, written, or in any other medium. In the event of any conflict, ambiguity or inconsistency between this Agreement and any other document, including any which may be annexed to this Agreement and any terms and conditions on Client’s purchase orders or other documents, the terms and conditions of this Agreement shall govern. No modification to any provision of this Agreement shall be binding unless in writing and signed by both parties.
Company and Client acknowledge and agree that: (i) any and all non-public information Company may in any way access or receive in connection with Client’s Salesforce account (including, but not limited to, any information regarding Client’s business, sales, clients and/or customers), and any and all non-public information related to Client and/or its business, sales, clients and/or customers, will be deemed Client’s “Confidential Information”; (ii) Company will keep Client’s Confidential Information confidential; (iii) any and all confidential information, ideas or concepts developed by Company in connection with delivery of the Work Product, including the pricing and other terms of this Agreement, will be deemed Company’s “Confidential Information”; (iv) Client will keep Company’s Confidential Information confidential; (v) Company will permit its own employees or agents (“Representatives”) to access Confidential Information only on a confidential, need to know basis, to the limited extent necessary, provided all such Representatives are informed of Company’s confidentiality obligations with respect to Confidential Information; and (vi) both parties’ obligations provided in this paragraph will survive any termination of this Agreement. “Confidential Information” will not include any information that a party can demonstrate: (a) is publicly available through no act or breach by that party; (b) was previously in its possession before receiving the information from the other party under this Agreement; (c) was disclosed to it by a third party free to disclose such information without breaching an obligation to either party to this Agreement; or (d) it developed independently without use of or reliance on the other party’s information.
For the period from the date this Agreement until 12 months following the completion of the engagement, Client will not attempt to hire or persuade personnel to leave the Company’s employment. In the case that this clause is violated, the hiring party will be legally obliged to pay the other party a fine of at least three times the current yearly salary of the employee, in addition to any other legal fees it accrues in trying to resolve this issue.
4. Non-Business Day Work:
Any work requested to be performed on non-working days (weekends or holidays) and approved to be performed by Company on such days will be billed at double the project rate.
5. Project Team:
The project team will be determined by Company based on Client’s needs and Company’s available human resources. We will do our best to staff your project with personnel who are most qualified to service your account. If any of our personnel are not performing according to your expectations, please notify us immediately so that we may take appropriate action to resolve your concerns.
All SOW, change orders, or any quotes or proposals given by the Company to Client is purely as estimate. These estimates, if given, are based on our professional judgement, but always with a clear understanding that they are not a binding maximum or fixed fee quotation and are in all respects subordinate to and superseded by the other terms of our engagement. The actual cost may be higher than our estimate because of the unforeseen changes, events, new requirements, or delays that occur or circumstances that may arise which require us to perform additional services not originally anticipated or expected. Often, we cannot anticipate the ultimate complexity of the services at hand, nor the time and labor that will be required of us to handle it properly. The ultimate cost is frequently more or less than any estimate. The Client is responsible for any cost that are above and beyond the estimate.
7. Managed Services, Expiration of Hours, & Invoices:
All hours that are not used expire six months since the last time entry on the project. Upon payment of an invoice, it is confirmed that all hours in the invoices are correct and verified. Client cannot dispute an invoice in terms of cost of the services provided, after the invoice is paid.
8. Development, QA, Data Migration, and Bugs Assumptions:
We recommend that Client have a full sandbox we can work in so we do not affect LIVE processes while updating. Client is responsible for providing all data files in CSV format. All data cleansing will be the responsibility of the Client unless otherwise agreed upon. If Client wants Company to take care of cleaning or cleansing data, then Company will provide an estimate for such work with the proviso that any estimate produced prior to seeing the files and working with the data, will not necessarily reflect our actual fee. Company is not responsible for backing up Client data that is used for development. Client is responsible for all data backups until we complete the project. If custom code is needed for the project, a full dedicated sandbox must be provided to Company. All fixes to code or configuration will be billed to Client on a time and materials basis regardless of the cause. All time related to QA and bug fixes will be billed to Client. The Company does not guarantee any work. If there is Data Migration, then all fixes, bugs, or mistakes related to Data Migration will be billable regardless of cause. Company is not responsible for deficiencies in any third party applications, software or companies involved in the project. Company cannot always develop your custom solution without any bugs. The Client acknowledges that Bugs are a normal process of software development and further acknowledges that all software is subject to bugs and updates and further acknowledges that all debugging is billable. Company’s estimate and deliverables do not take account of any deficiencies/bugs, Client responsiveness, new product features, or the involvement of any third party.
9. Development Assumptions:
If custom code is needed for the project, a dedicated sandbox will need to be provided. If development of custom code is part of the project, deployment failures due to existing code are outside of the scope of this SOW and may need a change order for more time to troubleshoot. Client shall provide Company a Salesforce.com administrative username and password for use in the delivery of services identified in the SOW. Client acknowledges that they understand the capabilities and limitations of the specific edition of Salesforce.com and that this SOW will work within the native functionality available. Reporting and Dashboard configuration will be limited to standard Salesforce.com reporting using the Salesforce.com report wizard. If mobile access will be needed, Client will utilize the native version of Salesforce Mobile Application. Unless otherwise stated in the SOW, there will be no custom development done for the mobile application. Client will be responsible for the User Acceptance planning and testing of the application. Client IT team will be responsible for any deployment to user desktops or mobile devices. The scope of work assumes the use of native capabilities to configure the Salesforce.com application. This includes standard components (page layouts, fields, related lists, custom fields, required/optional, record types, and pick-lists) to support the functionality outlined in the SOW. Company is not responsible for the limitations and performance of Salesforce or any third party apps or services. Issues can arise that are unexpected in best-case scenarios. There are many reasons known and unknown in which bugs and issues can cause tasks to take longer than expected. The company is not liable for any unforeseen issues.
10. Third Parties; Disclaimer:
Company is not responsible for deficiencies in any third party applications, software or companies involved in the project. The client agrees that Bugs are a normal process of software development and confirms it will pay any charge for fixing bugs. The client acknowledges that the Company’s estimate and deliverables do not take account of any deficiencies/bugs, Client responsiveness, new product features, or the involvement of any third party.
11. Delays & Sign-Off:
Delays caused by Client may impact the timeline and cost of the project, including but not limited to Client’s not providing necessary information to Company to complete the project and Client not providing approvals in a timely manner. Delays result in increased costs to Company and change the pricing assumptions we previously provided Client. As a result, if Company asks Client to sign-off on a task or a project, Client must respond promptly, and in any event within three business days or such other deadline as mutually agreed by Company and Client. If Company does not hear back from the Client within such period, Company will have the right to assume Client’s approval, and Client will be responsible for all related costs. Company’s timeline in this SOW does not include time for delays caused by Client or unforeseeable circumstances. Company may delay a project by up to one month after the project has started. Company reserves the right to put a project on hold (no further work) if an invoice has not been paid on time. Company requires pre-payment by Client. If Client misses a meeting without a prior 24 hour warning then Company will book fifteen minutes of billable time for the missed meeting.
12. Limitation of Liability Disclaimer:
In no event shall Company or Client be liable for any loss of profit or revenue, or for any other special, exemplary, punitive, consequential, incidental, or indirect damages of any kind or nature arising out of or in connection with this Agreement, whether in an action based on contract, tort, subrogation or otherwise, even if a party has been advised of the possibility of such loss or damages; and the total losses of each party will be of no consequence for all claims of any kind arising as a result of or related to this Agreement (including, without limitation, lost business, lost records or data, or security breach, whether or not the possibility of such damages was disclosed or is reasonably foreseeable by such party). Company is not liable for Client’s performance. Client waive any and all claims against Company for which liability is expressly disclaimed in this paragraph and agrees to indemnify the Company from any claims arising therefrom.
13. WARRANTY DISCLAIMER:
WITH RESPECT TO ANY WORK PRODUCT, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO CLIENT OF THE PARTICULAR WORK PRODUCT OR FOR CLIENT’S PERFORMANCE THEREAFTER. ALL EXPRESSED AND IMPLIED WARRANTIES ARE DISCLAIMED. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE WORK PRODUCT FOR ANY PURPOSE. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. COMPANY DOES NOT WARRANT THAT THE WORK PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. NEITHER COMPANY NOR OUR REPRESENTATIVES WILL BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE BASED ON ANY ERRORS OR OMISSIONS THEREFROM, WHETHER IN NEGLIGENCE OR OTHERWISE, IN DELIVERING THE WORK PRODUCT. IF CLIENT IS NOT IN AGREEMENT WITH COMPANY’S WORK PRODUCT, IT IS CLIENT’S RESPONSIBILITY TO BRING FORTH THE ISSUE(S) FOR IMMEDIATE RESOLUTION BETWEEN CLIENT AND COMPANY WITHIN 30 DAYS OF DELIVERY, OTHERWISE COMPANY WILL INTERPRET CLIENT AS HAVING ACCEPTED THE WORK PRODUCT. THE COMPANY COVENANTS TO PERFORM ALL ACTIVITY USING QUALIFIED PERSONNEL AND THAT THE WORK PRODUCT WILL MATERIALLY CONFORM TO CLIENT AND COMPANY’S RESPONSIBILITY UNDER THE AGREEMENT OUTLINED IN THE SOW.
Client shall indemnify and hold Company harmless against any claims by third parties, including all related costs, expenses and attorneys’ fees incurred by Company therein whether in subrogation or otherwise arising out of or in conjunction with this Agreement and the Work Product.
15. Limitation of Remedies:
Client’s sole and exclusive remedy for any claim against Company with respect to the quality of the Work Product shall be addressed by Company’s remedying or performance such that the Work Product is free of any material defects or deficiencies therein and the client agrees to pay hourly fees for said work. Client is responsible for all data backups until we complete the project. THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES, AGENTS AND LICENSORS FOR ANY REASON WHATSOEVER RELATED TO THE WORK PRODUCT SHALL NOT EXCEED THE AGGREGATE OF THE FEES PAID BY CLIENT HEREUNDER, AND CLIENT AGREES NOT TO SUE FOR A GREATER AMOUNT. CLIENT RELEASES AND DISCHARGES SUCH PARTIES FROM ALL LIABILITY IN EXCESS OF SUCH AMOUNT, INCLUDING LIABILITY FOR ITS OR THEIR NEGLIGENCE.
16. Intellectual Property (IP):
Company owns all IP and Work Product created during each SOW’s engagement and grants an indefinite license to Client for the use of the Work Product, for use only by Client and not for resale. Client will own all data and have access to all source code as applicable to each project. Nothing stated in or implied from this Agreement gives Client any license under any copyright, trademark, trade secret, or other intellectual property of Company or any third party. Client retains sole and exclusive ownership of all rights, title, and interest (including but not limited to all intellectual property rights) in and to its website, products, services, and all material originating from Client under this Agreement.
Should any SOW be terminated after Work Product is rendered, Client agrees to pay Company for time consumed to the date of termination, due net 30 days following invoicing. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.
18. Deadlines; Force Majeure:
Company acknowledges that any deadlines set forth in an SOW are significant, and will make reasonable efforts to meet such deadlines with the express understanding that time is not of the essence. Failure to produce a Work Product by a particular deadline shall not be grounds for cancellation of this Agreement or any SOW. Neither party will be liable to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay that is caused by or results from acts beyond the affected party’s reasonable control, including (a) acts of God; (b) flood, fire or explosion; (c) national or regional emergency; (d) strikes, labor stoppages or slowdowns or other industrial disturbances; (e) disruptions in power, telecommunications or internet or damage to computer equipment; (f) loss of Company personnel; or (g) any other issue or event which is beyond the reasonable control of either party (each, a “Force Majeure Event”). A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The non-affected party may terminate this Agreement if such failure or delay continues for a period of 15 days or more. If Client misses a meeting without a prior 24 hour warning then Company will book fifteen minutes of billable time for the missed meeting.
Company may use Client’s name and logo on Company website and promotional materials in an accurate and reasonable manner to identify Client as a client of Company, as long as approval is provided by the Client in writing (including email).
20. Travel & Expenses:
Travel to Client site will be billed on a Time & Materials Basis. All expenses related to travel will be billed to Client. Car Rental: Company has reduced rate car rentals with multiple car rental companies. When Company rents a car for a client, it is of a full-size. The earlier the booking can occur, will generally yield a better rate. Hotels: If a hotel is needed, a 3.5 star hotel or above will be booked. Company also has reduced rates with multiple hotel chains. Flights: If a flight is needed, a coach class ticket will be purchased as applicable. The earlier the booking can occur, will generally yield a better rate.
21. Dispute Resolution:
In the event that a dispute arises between the parties regarding the performance of this Agreement, the parties shall attempt in good faith to resolve any dispute arising out of or in connection to this Agreement pursuant to this Agreement by recourse or a mediator agreeable to both parties. Client agrees to pay any and all outstanding invoices and make their account current as part of and as required under this Agreement even if a dispute arises and the Parties proceed with the dispute resolution process. Client must pay full invoice even if disputed charges exists. Payment of all invoices during this process is an essential part of the good faith requirement. In the event of a dispute relating to nonpayment to Company by Client, Company reserves the right to immediately submit the matter to any collection agency or attorney, or report non-payment to any credit bureau or agency. Company does not waive any rights or remedies for seeking payment for quantum merit or any amount agreed upon by the parties for the project. Company is not subject to the dispute resolution requirements contained herein for non-payment disputes for services rendered under this Agreement. If the dispute is not resolved within 90 days of the original notice of the dispute, or if any party fails to participate in the negotiations as required under this Agreement, the matter may be resolved by binding mediation conducted with the then current Rules of Practice and Procedure (the “Rules”) for mediation by a mediator who has knowledge and understanding of Salesforce or similar software or commercial programs. The cost and fees of the mediation hearing will be shared equally between Client and Company. The mediator shall not be permitted to award any damages in excess of the damages permitted under this Agreement. The mediator may award attorney fees, expert fees and interest. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between Client and Company. Accordingly, except as provided for by the Rules and this Agreement, neither Client nor Company will be permitted to pursue court action regarding claims that are subject to mediation.
22. Third Party Applications:
Client will be responsible for purchasing any additional third party applications and AppExchange products identified in the SOW or necessary to achieve the objectives specified in the SOW and the associated licensing cost, including product specific support and training. All hours dedicated to working or debugging third party apps are billable.
This Agreement and the rights and obligations of the parties under this Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, excluding any conflict of laws principles. All deposits are non-refundable. Any claims or disputes arising out of or related to this Agreement must be resolved exclusively by the courts located in Toronto, Ontario and the parties each agree to submit to the personal jurisdiction of, and that venue is proper in, such courts for the purpose of resolving all such claims or disputes. Each party also expressly waives any right to a jury trial in the resolution of any such claims or disputes. No delay or failure of either party to exercise or enforce any right or provision of this agreement will be deemed a waiver of that or any other right or provision. No provision of this agreement may be modified or waived without the express prior written consent of both parties. Sections 2-3, and 9-17 of this Agreement will survive any termination of this Agreement and will remain in full force and effect. Company and Client agree that no joint venture, partnership, employment, or agency relationship exists between them. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, Company may assign this Agreement to any of its affiliated companies or in connection with a merger or consolidation involving Company or the sale of substantially all of Company’s assets, in each case to the other party or its successor in such transaction. All notices shall be in writing and sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
25. Severability :
If any provision or part of this Agreement is found to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability will attach only to such provision or part of such provision and the remaining part of such provision and all other provisions in this Agreement will continue in full force and effect.