Master Services Agreement
This Master Services MSA (“MSA”) is effective as of the effective date of an applicable signed order form and/or proposal (such document an “Order Form” and such date the “Effective Date”) and is by and between Rhymetec LLC, a New York limited liability company with a place of business at 368 9th Avenue, 6th floor, New York, NY 10001 (“Rhymetec”), and the customer set forth on the Order Form (the “Customer”) (each a “party” and together with the “parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.
1. Services. This MSA will be implemented through an applicable Order Form, which will define the services to be performed by Rhymetec (the “Services”) along with, if applicable, a description of any literary works or other works of authorship (such as documentation, reports, and similar works) that Rhymetec is required to deliver to the Customer as part of the Services (the “Deliverables”). Rhymetec agrees to undertake and complete the Services and produce the Deliverables in accordance with and on the schedule specified in such Order Form.
2. Deadlines. The Customer acknowledges that Rhymetec’s work is highly dependent on the availability of the Customer’s personnel, contractors, technical systems, and other factors beyond the control of Rhymetec. Rhymetec will use commercially reasonable efforts to meet any stated deadlines but the Customer acknowledges that despite these efforts, due to, among other things, the factors noted above, any stated deadlines and timelines may not be met.
3. Payment. As the only consideration due to Rhymetec regarding the subject matter of this MSA, the Customer will pay Rhymetec as set forth in the Order Form. Promptly after execution of this MSA, Rhymetec will deliver to the Customer a properly completed and duly executed Department of the Treasury IRS Form W-9 or W-8BEN. Periodically, Rhymetec may adjust its fees upon prior notice to the Customer to reflect pricing changes and rate modifications associated with changes in the compensation of Rhymetec’s personnel. Such changes will be communicated to the Customer in a timely manner and will apply to the Customer thirty (30) days after such notice; provided that the Customer may decline further work and terminate any applicable Order Forms prior to such fees taking effect. The Customer will be responsible for payment of all taxes and any related interest and/or penalties resulting from any payments made or Services rendered hereunder, other than any taxes based on Rhymetec’s net income. Unless otherwise specified in an Order Form, payment is due within thirty (30) days of receipt of invoice.
4. Term and Termination.
a. The “Term” of the MSA is set forth on the applicable Order Form, along with any provisions for renewal. If the Services in an Order Form are of a recurring nature, unless otherwise specified in the Order Form, the Term will renew for successive equal installments of the same duration until terminated in accordance with this MSA.
b. Either party may cancel an upcoming renewal Term of an Order Form up to thirty (30) days prior to the end of the then-current Term.
c. If either party materially breaches a material provision of this MSA, the other party may terminate this MSA upon five (5) days’ written notice unless the breach is cured within the notice period.
d. Upon termination of this MSA, all outstanding Order Forms will terminate.
e. Upon termination of an Order Form (1), the Customer will pay to Rhymetec all unpaid and undisputed fees due under the Order Form for Services rendered and (2) if applicable, Rhymetec will transfer any Customer materials in Rhymetec’s control (e.g., access keys for the Customer’s software accounts) that were required to perform the Services under that Order Form back to Customer.
f. Sections 3 through 11 of this MSA and any remedies for breach of this MSA will survive any termination or expiration.
5. Ownership and Licenses.
a. Rhymetec will retain all rights, titles, and interest (including patent rights, copyright rights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know how, ideas and information made or conceived or reduced to practice, in whole or in part (the “Intellectual Property Rights”) in its proprietary templates and methods for performing the Services and producing the Deliverables (the “Pre-existing Rhymetec IP”).
b. Subject to the terms of this MSA and the Customer’s fulfillment of all payment obligations hereunder, the Customer will own all Intellectual Property Rights in the Deliverables, excluding the Pre-existing Rhymetec IP.
c. If any part of the Services or Deliverables is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed, modified, commercialized or otherwise exploited (collectively, “Exploited” or “Exploitation”) without using or violating technology or intellectual property rights owned or licensed by Rhymetec and not assigned hereunder, including but not limited to the Pre-existing Rhymetec IP, Rhymetec hereby grants the Customer and its successors a perpetual, irrevocable, worldwide royalty-free, nonexclusive, sublicensable right and license to fully Exploit and exercise all such technology and intellectual property rights in support of the Customer’s exercise or Exploitation of the Services, Deliverables, other work performed hereunder or any assigned rights (including any modifications, improvements, and derivatives of any of the foregoing).
d. The Customer grants Rhymetec a limited license to use, reproduce, distribute, and make derivative works of any Customer Intellectual Property solely to the extent necessary for Rhymetec to perform the Services and produce the Deliverables.
6. Confidentiality. Each party (the “Receiving Party”) agrees to protect the Confidential Information of the other party (the “Disclosing Party”) in a manner consistent with the treatment that Receiving Party accords its own Confidential Information of a similar nature, and the Receiving Party agrees to use and reproduce Confidential Information only to perform its obligations under this MSA or for its internal collection, analysis and training purposes. The Receiving Party may disclose Confidential Information to its employees, agents, and subcontractors, who have a need to know, and employees of any legal entity that it controls, controls it, or with which it is under common control, who have a need to know. “Confidential Information” is any information which is identified by the Disclosing Party at the time of disclosure as being of a confidential nature (including, but not limited to, business plans, products, trade secret processes or methodologies, software, documentation, design specifications, other technical documents and other proprietary rights or information) or that is disclosed to the Receiving Party under circumstances that would lead a reasonable person to understand that such information is confidential or proprietary in nature. Confidential Information does not include information that (i) is or becomes generally available to the public without breach by the Receiving Party of its confidentiality obligations under this MSA, (ii) is received by the Receiving Party from a third party without restriction against disclosure, (iii) was known to the Receiving Party without restriction prior to disclosure, or (iv) is independently developed by the Receiving Party without subsequent use of the Disclosing Party’s Confidential Information. If the Receiving Party becomes legally compelled (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar process) to disclose any of the Confidential Information, the Receiving Party will (to the extent legally permitted) provide the Disclosing Party with prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedies.
7. Customer Acknowledgements and Responsibilities.
a. The Customer acknowledges that the achievement of any policy, process, model, system, or risk management practice depends not only on the design and implementation, but also on the quality, experience, and continuity of personnel involved, the diligent ongoing execution of any such policy, process, model, system or risk management practice, and appropriate modifications as changing conditions warrant. The Customer understands and accepts responsibility for all decisions related to and implementation, and ongoing modification of, policies, processes, models, systems, and risk management practice assessments, methods, and assumptions, if any, developed in the course of the Services.
b. The Customer understands that the Services and the Deliverables may depend in part on the Customer providing sufficient information and access to allow Rhymetec’s performance. If Services or Deliverables are delayed due to the Customer not providing necessary information or access in a timely manner, the Customer will accept full responsibility and, if applicable, such delay will not relieve the Customer of its payment obligations as outlined in the applicable Order Form. Such delays may also necessitate an extension of the Term to allow performance of the Services and delivery of the Deliverables, generally coterminous with the period of the delay, which will occur at Rhymetec’s commercially reasonable discretion after prior notice to the Customer.
c. All Deliverables are based upon information made available by the Customer to Rhymetec as of the date such Deliverables are provided to the Customer. Rhymetec has no obligation to update any Deliverables unless otherwise agreed in writing.
d. The Customer is solely responsible for establishing and maintaining its own effective internal control system, record keeping, management decision-making, and other management functions. The Customer will be fully and solely responsible for (i) applying independent business judgment with respect to the Services and the Deliverables, (ii) making any implementation decision related thereto, and (iii) determining further courses of action with respect to any matters addressed in any Deliverable or Service.
e. The Customer acknowledges that there is no authoritative standard against which risk management practices can be directly compared. In practice, methodologies and approaches to measuring, managing, and controlling risk vary considerably. New and refined practices continue to evolve and the characterization of policies, procedures, or models as sound, “industry standard” or “best” practices is judgmental and subjective.
8. Representations and Warranties.
a. Rhymetec warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of the Services or any part of this MSA is or will be inconsistent with any obligation Rhymetec may have to others; (ii) all work under this MSA will be Rhymetec’s original work and none of the Services or Deliverables or any development, use, production, distribution or Exploitation thereof will infringe, misappropriate or violate any Intellectual Property Rights of any person or entity (including, without limitation, Rhymetec); (iii) Rhymetec has the full right to provide the Customer with the assignments and rights provided for herein; (iv) if Rhymetec’s work requires a license, Rhymetec has obtained that license and the license is in full force and effect; (v) Rhymetec will comply with all applicable laws and safety rules in the course of performing the Services; and (vii) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation or organization.
b. The Customer represents and warrants that: (i) all information, including Confidential Information, that it provides to Rhymetec under this MSA is accurate to the best of its knowledge; and (ii) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation or organization.
c. OTHER THAN THE AFOREMENTIONED WARRANTIES, RHYMETEC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE OR DEALING, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Indemnification and Release of Claims.
a. Each party will indemnify, defend, and hold harmless the other party for any losses for bodily injury or damages to real property resulting directly from the indemnifying party’s gross negligence or willful misconduct.
b. Rhymetec agrees to defend, indemnify, and hold harmless the Customer, the Customer’s officers, directors, employees and agents, affiliates, any benefit plan sponsored by the Customer, and any fiduciaries or administrators of any benefit plan, from and against any claims, liabilities, or expenses relating to any claim by Rhymetec’s personnel for compensation, tax, insurance, or benefits from the Customer or any benefit plan sponsored by the Customer.
c. The Customer will indemnify, defend, and hold harmless Rhymetec from any third party claims arising from the Customer’s disclosure of Deliverables to such third party and such third party’s reliance, in any manner, on such Deliverables.
d. The Customer hereby releases Rhymetec and its personnel from any liability and costs relating to the Services or the Deliverables to the extent that such liability and costs are attributable to any information provided, or decisions or approvals made, by the Customer or Customer personnel, particularly those that were not complete, accurate or current.
10. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL EITHER PARTY TO THIS MSA, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS MSA OR THE SERVICES REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, A PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS MSA OR THE SERVICES WILL IN NO EVENT EXCEED THE FEES PAID BY THE CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; PROVIDED THAT LIABILITY UNDER THE PARTIES’ INDEMNIFICATION OBLIGATIONS OR FOR BREACHES OF CONFIDENTIALITY WILL NOT IN THE AGGREGATE EXCEED TEN TIMES THAT AMOUNT. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES SET FORTH HEREIN. RHYMETEC HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMERS WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS MSA.
a. Workspace. If it is necessary for Rhymetec to work on-site with the Customer, the Customer will provide a reasonable workspace for Rhymetec personnel at its worksites, as well as occasional administrative support services related to the Services. The Customer will provide Rhymetec personnel with any necessary safety orientation and security access for work on such premises.
b. Publicity. Neither party will use the name of the other party, in part or whole, or any of their trademarks or trade names without the other party’s prior written approval; provided that, Rhymetec may, without prior written approval, list the Customer as a reference and as an active client during the Term.
c. Relationship of the Parties. Rhymetec is providing the Services as an independent business and is customarily engaged in the business of providing services. Rhymetec will be responsible for hiring, firing and supervising the personnel providing the Services hereunder. Subject to the terms of this MSA, Rhymetec, and not the Customer, will determine the manner and means by which Rhymetec performs the Services, the location of the performance of the Services, and the schedule on which the Services are performed. Unless otherwise specified in a Statement of Work, Rhymetec will be responsible for providing all necessary supplies, materials, and equipment required for the performance of the Services. Rhymetec agrees to comply with all rules and procedures for accessing and using the Customer’s premises and equipment, including those related to safety and security. Notwithstanding any provision hereof, for all purposes of this MSA, each party will be and act as an independent contractor and not a partner, joint venturer, or agent of the other and will not bind nor attempt to bind the other to any contract. Rhymetec will bear sole responsibility for all acts and omissions of Rhymetec’s personnel. Rhymetec will bear sole responsibility for the payment of compensation to its personnel. Rhymetec will withhold (if applicable), pay and report, for all personnel assigned to the Services, federal, state, and local income tax withholding, social security taxes, employment head taxes, unemployment insurance, and any other taxes or charges applicable to such personnel. Rhymetec will bear sole responsibility for any health or disability benefits, retirement benefits, or welfare, pension or other benefits (if any) to which such person may be entitled.
d. Assignment. This MSA and the Services contemplated hereunder are personal to Rhymetec and Rhymetec will not have the right or ability to assign, transfer or subcontract any obligations under this MSA without the written consent of the Customer. Any attempt to do so will be void. the Customer may fully assign and transfer this MSA in whole or part.
e. Notice. All notices under this MSA will be in writing, email acceptable, and will be deemed given when sent by confirmed electronic means, or three (3) days after being sent by prepaid certified or registered U.S. mail. All notices under this MSA will be sent to the address of the party to be noticed as set forth on the applicable Order Form or such other address as such party last provided to the other by written notice.
Waivers and Modifications. The failure of either party to enforce its rights under this MSA at any time for any period will not be construed as a waiver of such rights. No changes or modifications or waivers to this MSA will be effective unless in writing and signed by both parties.
f. Severability. In the event that any provision of this MSA will be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this MSA will otherwise remain in full force and effect and enforceable.
g. Force Majeure. Neither party will be liable for any delay in the performance of its obligations (except for payment obligations) under this MSA if such default or delay is caused by an act of God or other circumstance outside the reasonable control of the party, including, but not limited to, fire, flood, earthquake, natural disasters, pandemic, or other acts of God, terrorist acts, riots, civil disorders, freight embargoes, government action, or the like.
h. Governing Law and Venue. This MSA will be governed by and construed in accordance with the laws of the state of New York without regard to the conflicts of laws provisions thereof. Any legal action or proceeding relating to this MSA will be brought exclusively in the state or federal courts located in New York, New York, and each party consents to the jurisdiction thereof.
i. Injunctive Relief. Any breach or threatened breach of Section 6 (Confidentiality) of this MSA will cause irreparable harm to the Customer for which damages would not be an adequate remedy, and, therefore, the Customer is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.
j. Completeness. This MSA constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.