Master Services Agreement

 

THIS MASTER SERVICES AGREEMENT (“Agreement”) is made and entered into as of the _________________ (the “Effective Date”), by and between _________________ (and its related affiliates and subsidiaries) and WarmUp, Inc., an Indiana corporation (the “Service Provider”).

WITNESSETH:

WHEREAS, the Service Provider provides (i) a web-based communications platform which allows sales, marketing and customer success professionals to quickly and efficiently request and receive new client referrals from existing contacts and connections, and (ii) the training, technical support and administrative support related to such platform (collectively, the “Services”); and

WHEREAS, Client desires to engage the Service Provider to provide, and the Service Provider desires to provide, the Services, under the terms and conditions of this Agreement; 

NOW, THEREFORE, in consideration of the mutual covenants, promises and undertakings set forth in this Agreement, the receipt and sufficiency of which are hereby acknowledged, Client and the Service Provider hereby agree as follows:

AGREEMENT

  1. Services.   During the Term (as defined in Section 2 below), the Service Provider shall render the Services (as more particularly described on Exhibit A attached hereto and incorporated herein) to the Client on a non-exclusive basis, and the Client agrees to procure the Services.
  2. Term.  The initial term of this Agreement shall commence on the Effective Date and shall continue thereafter until the twelve month anniversary of the Effective Date (the “Initial Term”), unless earlier terminated as provided herein.  Following the expiration of the Initial Term, Client may extend this Agreement for successive twelve month periods (each, a “Renewal Term” and collectively, with the Initial Term, the “Term”) by Client providing written notice of renewal to Service Provider at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as applicable.   
  3. Fees and Expenses.  As full consideration for the Services, Client shall pay the fees to the Service Provider as set forth on Exhibit B (collectively, the “Service Fee”).  The Service Fee shall be paid to the Service Provider no later than thirty (30) days following Client’s receipt of the Service Provider’s invoice for the applicable period.
  4. Relationship of Service Provider and Client.
  1. Client and the Service Provider intend and agree that the Service Provider shall serve as an independent contractor.  Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not constitute a hiring by either party or a contract of employment.  No acts or assistance given to the Service Provider by Client shall be construed to alter the independent contractor relationship, and nothing contained in this Agreement shall be construed to place the parties in a relationship of partners, joint ventures, principal and agent, or employer and employee.  The Service Provider is not authorized to act on behalf of Client nor is Client authorized to make any promise, warranty or representation on behalf of the Service Provider. The Service Provider shall have the sole and exclusive right, duty and obligation to retain and exercise full control and responsibility over the order, sequence, details, manner, and means by which the Service Provider (or any of the Service Provider’s agents, employees, or subcontractors) renders the Services as contemplated by this Agreement according to the Client’s needs and directions.
  2. The Service Provider shall have the right, at its own expense and without consent, to hire any agents, assistants or employees as the Service Provider deems necessary to fulfill its obligations under this Agreement.
  1. . Taxes.  It is the intention and agreement of the parties that the Service Provider is an independent contractor and shall be responsible for the withholding and payment of all taxes (including, but not limited to, federal and state income taxes, social security taxes, unemployment insurance taxes, self-employment taxes and any other taxes or business license fees, and interest and penalties on such taxes and fees), unemployment insurance, worker’s compensation insurance, and any and all other assessments imposed or related to the Service Provider’s business activities, including all taxes on the payment to the Service Provider for the Services rendered by the Service Provider under this Agreement, and the parties agree that they will file all tax returns consistent with the foregoing.
  2. . Intellectual Property Rights
    1. Service Provider hereby grants to Client a non-exclusive right and license to access and use the Services pursuant to this Agreement, in and under Service Provider’s intellectual property rights. Except for the foregoing licenses or as otherwise expressly agreed by the parties, each party to this Agreement retains exclusive ownership and rights to its trade secrets, inventions, copyrights, and other intellectual property, and nothing in this Agreement grants any right or license therein to the other party.
    2. Client acknowledges that Client’s use of the Services may require the processing and transmission of Client Content (as defined below) to Service Provider. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client or its end users uploads, submits, or stores Client Content through the Services, Client grants Service Provider a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Client Content solely to provide the Services and to support and improve the Services. Service Provider is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under this Agreement on behalf of Service Provider). Without limiting Client’s rights and remedies under this Agreement, Client acknowledges that Client Content and information regarding Client’s account will be processed by Service Provider and stored and processed using online hosting services selected by Service Provider. Notwithstanding anything to the contrary in this Agreement, Client authorizes and agrees that Service Provider may access, use, aggregate, and disclose Anonymized Client Content alone or with that of other users of the Services, as well as other Anonymized data generated by the operation of the Services in connection with improving the Services, establishing benchmarks and other uses which are not prohibited by law, provided that in no event may Service Provider publish or disclose such data to third parties without receiving Client’s prior written consent.  For purposes of this Agreement, “Client Content” means any information, files, documents, data, reports or other content that Client or its end users shares with Service Provider through the Services; and “Anonymized” means (i) names and all other information which could identify Client from such data; (ii) information that does not relate to an identified or identifiable natural person, or (iii) personal data that is rendered anonymous in such a manner that the data subject is not (or is no longer) identifiable.
  3. . Confidential Information.  The parties agree that any information received by one of the parties from the other party during the performance of the parties’ obligations under this Agreement regarding the personnel, financial, technical, or other affairs of Client or the Service Provider, whether or not such information is designated as confidential, shall be treated by the parties as confidential and held in full confidence using a professional standard of care, and shall not be revealed to any persons, firms or organizations, except as required by law or to enforce any rights under this Agreement. The provisions of this Section 7 shall indefinitely survive the termination or expiration of this Agreement.
  4. . Assignment and Successors.  Client shall not assign, subcontract or delegate its obligations or rights under this Agreement without the express prior written consent of the Service Provider, provided, however, that such consent shall not be required with respect to an assignment or transfer to (a) any corporate affiliate of Client; or (b) an acquirer of all or substantially all of the assets or capital stock of Client, whether through purchase, merger, consolidation or otherwise.  This Agreement shall inure to the benefit of and shall be binding upon the parties and their permitted successors and assigns.
  5. . Reasonableness and Severability.  Client hereby acknowledges and agrees that the restrictions contained in this Agreement are fair and reasonable in all respects and do not adversely affect the ability of Client to do business.  Service Provider and Client stipulate and agree that each and every paragraph, sentence, term and provision of this Agreement shall be considered independent, reasonable, and severable. If a court of competent jurisdiction makes a final determination that any paragraph, sentence, term or provision of this Agreement is unreasonable, invalid or unenforceable, the remaining paragraphs, sentences, terms and provisions of this Agreement shall be unimpaired and the unreasonable, invalid or unenforceable paragraph, sentence, term or provision of this Agreement shall be deemed replaced by a paragraph, sentence, term or provision that is valid, reasonable and enforceable and that most closely approximates the intention of the parties hereto with respect to the unreasonable, invalid or unenforceable term or provision, as evidenced by the remaining valid enforceable terms and conditions of this Agreement.
  6. . Non-Waiver.  The failure of either party to insist in any one or more instances upon performance of any of the provisions of this Agreement or to pursue its rights under this Agreement shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.
  7. . Notices.  All notices, statements, demands or other communications (hereinafter referred to as “Notices”) given under or pursuant to this Agreement shall be in writing, addressed to the parties at the respective addresses provided below, and shall be given by hand delivery, facsimile transmission, electronic transmission, overnight delivery, or certified or registered mail, postage prepaid, return receipt requested.  If sent by (i) facsimile or e-mail transmission (with confirmation of transmission), notice shall be effective as of the date of delivery if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient, (ii) overnight delivery, notice shall be effective as of the date of delivery, or (iii) certified or registered mail, notice shall be deemed to have been given forty-eight (48) hours after the date of mailing.  The addresses of the parties to which the notices are to be sent are as follows: 

If to Client, to: Company Name:__________________

Attention:________________________

Address: ________________________

If to the Service Provider, to:

WarmUp, Inc.

8625 N. Meridian Street

Indianapolis, Indiana 46260

Attention: Michael Hurley, CEO 

Either party may, from time to time, change its address for receipt of notice by sending a notice to the other party specifying a new address.

  1. . Governing Law and Choice of Forum.  This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Delaware, notwithstanding the choice of law provisions of any jurisdiction to the contrary.  
  2. . Limitation of Liability; Disclaimer. 

(a) IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF  REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEEDING THE DATE ON WHICH THE CLAIM AROSE. 

(c) EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICE PROVIDER PROVIDES THE SERVICES, THE WARMUP PLATFORM, AND ANY WORK OR DELIVERABLES ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND.  SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE SERVICES, WORK PRODUCT, OR RELATED DELIVERABLES PROVIDED HEREUNDER, OR OTHERWISE RELATED TO THE SUBJECT MATTER HEREOF.

  1. . Modification.  This Agreement may not be modified or altered except by written instrument duly executed by the parties hereto.
  2. . Entire Agreement.  This Agreement contains the entire agreement of the parties to this Agreement with respect to the subject matter of this Agreement and shall be deemed to supersede all prior agreements, whether written or oral, and the terms and provisions of any such prior agreements shall be deemed to have been merged into this Agreement.