This Master Services Agreement (also, “MSA”) governs the Statement(s) of Work executed by and between Basho Technologies, Inc. (“Basho”) and Client (identified on the Statement of Work), and specifically referencing this Master Services Agreement. This Master Services Agreement, together with any Statement of Work executed hereunder, and any other addenda or exhibits attached thereto and/or specifically referenced therein, collectively shall constitute the “Agreement.” To the extent there are any conflicts or inconsistencies between this MSA and any Statement of Work, or attachments, exhibits or addenda thereto, conflicts will be resolved in the following order of precedence: 1) the MSA; 2) the SOW; 3) other exhibits or attachments to the Agreement.
The parties, intending to be legally bound, hereby agree as follows:
1. STATEMENT OF WORK. Basho and Client have entered into one or more statements of work (each, a “Statement of Work” or “SOW”). Each Statement of Work shall specifically identify this MSA and indicate that it is subject to the terms hereof.
A. Services and Deliverables. Each Statement of Work will describe, as applicable, the project, the scope and nature of the tasks and services to be performed (the “Services”), and/or all items or developments to be delivered (the “Deliverables”) by Basho, along with the responsibilities of Client, the fees, costs and expenses associated with Services/Deliverables, and any additional terms to which the parties have agreed.
B. Estimates. All statements and agreements concerning time are good faith estimates based upon information available and circumstances existing at the time made, and each SOW is subject to equitable adjustment (as reflected in a Change Order) upon any material change in such information or circumstances or upon modification of the scope or timing that would increase the time or resources expended by Basho.
C. Change Orders. Either party may request changes to the Services and Deliverables, or the scope of the Project, provided that such changes are not effective unless and until set forth in a written document executed by authorized representatives of the parties (a “Change Order”).
2. TERM. This Master Services Agreement will commence on the Effective Date of the first SOW executed hereunder and, except as expressly set out herein, will continue until termination or expiration of the final SOW hereunder.
3. FEES AND PAYMENT TERMS.
A. Fees and Charges. Client will pay the fees (“Fees”), and the expenses, costs and other charges and reimbursable items (collectively, the “Expenses”) as set forth in each SOW. All Fees and Expenses are expressed in U.S. Dollars and, except as expressly set out herein, are non- refundable.
B. Invoices and Payments. Basho will invoice Client for 100% of Fees upon the Effective Date of the SOW. In addition, Basho will invoice Client on a monthly basis for all Expenses for the previous month. Client will pay amounts due in full within thirty (30) days of the date of each invoice. Balances not paid within this time are considered past due.
C. Past Due Balances. Past due balances are subject to a late payment charge calculated at a rate of the lesser of one and one-half percent (1.5%) per month, or the highest rate permitted by law until paid. Basho may suspend Services, or stop work toward any Deliverables, should Client fail to pay properly invoiced fees or charges on or by the due date. Without limiting the foregoing, Basho may terminate the applicable SOW if Client does not pay a past-due balance within ten (10) days of receipt of written notice by Basho. Should Basho prevail in any action to collect a past due balance, then in addition to any and all damages or remedies available to Basho at law or equity, Client will reimburse Basho for all reasonable fees, costs and expenses (including but not limited to reasonable attorneys’ fees) incurred by Basho to collect any such past due and unpaid amounts. No endorsement or statement to the contrary on any check or payment, or on any letter accompanying any check or payment, or elsewhere will be construed as an accord or satisfaction.
D. Taxes. Client will be responsible for any excise, sales, use or other similar tax as required by law, based upon the Fees, Expenses, Deliverables or Services rendered pursuant to the Agreement, any of which may be paid by Basho on Client’s behalf and added to Client’s invoice. Client will not be obligated to pay any taxes based on Basho’s net income or property.
A. Independent Contractor. The parties agree that Basho is acting as an independent contractor and not as an employee or agent of Client. Basho shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of Basho’s personnel. Basho may engage third party vendors or subcontractors to perform some or all of the Services, provided that Basho will remain liable for the performance of its vendors and/or subcontractors hereunder.
B. Non-Solicitation. During the term hereof and for a period of twelve (12) months thereafter, neither party shall directly or indirectly solicit for employment, or employ, any employee of the other party who performed any work in connection with a SOW, without the written consent of the other party. The foregoing restriction shall not apply to any employee of the other party who submits an unsolicited application in response to a general job posting or general/public solicitation for employment.
5. OBLIGATIONS OF CLIENT
A. On-Site Assistance. For any Services to be provided on premises owned or controlled by Client, Client will (in addition to any items set forth in the applicable SOW) provide Basho personnel with (i) a safe and adequate work environment and facilities, including but limited to adequate power, cooling, Internet and network access, and (as applicable) access to computer workstations, software, hardware, documentation, and equipment, and (ii) access to and cooperation from Client personnel, agents and/or contractors as reasonably necessary for the performance of Services or completion of Deliverables.
B. Cooperation. Client will ensure that all Client’s personnel (agents or contractors) who may be necessary or appropriate for the successful performance of the Services or completion of Deliverables will (i) be available to assist Basho’s personnel by answering questions and providing requested documents and information in a timely manner; (ii) participate in, and contribute to, the Services and Deliverables as outlined in the SOW; (iii) participate in applicable meetings; (iv) contribute to the testing of Deliverables or related software, hardware and systems; and (v) be available to assist Basho with any other activities or tasks reasonably required to complete the Services or Deliverables in accordance with the applicable SOW. Client is responsible for the performance of its employees, agents and/or contractors, and for the accuracy and completeness of all data and information provided by it to Basho hereunder. Basho is entitled to rely on all decisions and approvals of Client and its authorized agents and representatives.
6. CONFIDENTIAL INFORMATION.
A. Definition. “Confidential Information” means any non-public information of a party or information that a party treats or reasonably designates as confidential, or that a reasonable party should understand is confidential based on the facts and context of disclosure, including, but not limited to, information relating to a party’s existing or planned: business activities, employees, customers, prices, financial affairs, technology, software, marketing or sales plans, trade secrets, processes or technical/engineering data. Without limiting the foregoing, Basho Confidential Information includes, but is not limited to, the pricing and other commercial terms contained in the SOW.
B. Obligations. Either Party may disclose (Disclosing Party) to the other Party (Receiving Party) Confidential Information. The Receiving Party may use the Disclosing Party’s Confidential Information only as reasonably necessary perform or receive the Services or Deliverables and to comply with the terms and obligations set out in this Agreement. Confidential Information will be kept confidential by the Receiving Party, and shall not be disclosed, in whole or in part, to any person other than its affiliates, officers, directors, employees, subcontractors, agents, or representatives (collectively, “Representatives”) who need to know such Confidential Information for the purpose of negotiating, executing, and implementing this Agreement, and prosecuting or defending any claims hereunder. The Receiving Party agrees to inform its Representatives of the confidential nature of such information and to direct such persons to treat Disclosing Party Confidential Information in accordance with these terms, and shall be liable for any breach hereof by its Representative(s). The Receiving Party shall protect Confidential Information in the same manner as it protects its own confidential information, but in any case using no less than a reasonable degree of care.
C. Exceptions. The obligations of the Receiving Party under this Section will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information as required by law, court order or regulation; provided that the Receiving Party (a) gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy, (b) discloses only such Confidential Information as is required, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
7. LIMITED WARRANTY.
A. Deliverables and Services. With respect to any Deliverable or Services, Basho warrants the following:
i) the Services will be performed, and Deliverables provided, by qualified personnel in a professional manner with reasonable care and skill and in accordance with industry standard;
ii) the Services and Deliverables will substantially conform to requirements and specifications expressly set forth in the SOW.
B. Remedy. In the event of a non-conformity with the foregoing warranty, and provided Basho receives written notice of non-conformance within the time period set out in the SOW, Basho will, at its sole option and without additional charge to Client, either (a) correct or modify the Deliverables, or re-perform the Services, such that they conform with the written specifications; or (b) refund to the Client that portion of the fees and charges associated with the non-conforming Deliverable or Service. This Section 7.B sets forth Client’s sole and exclusive remedy, and Basho’s entire liability, for breach of any warranty.
C. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BASHO DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
8. Export. The term “technical data” used in this section is defined in the United States Export Administration Regulations (“Regulations”). The parties acknowledge that to the extent any tangible or intangible technical data provided under this Agreement are subject to U.S. export laws and the Regulations, each party agrees that it will not use, distribute, transfer, or transmit technical data provided by the other party under this Agreement except as expressly authorized and, in all cases, in compliance with U.S. export laws and the Regulations. Each party shall comply with the Foreign Corrupt Practices Act, as amended, and the rules and regulations thereunder. To the extent that any of the Services or Deliverables cannot be performed or provided without violation of any law, regulation, or other control, then Basho shall not be obligated to provide the same and the SOW shall be amended accordingly.
9. LIMITATION OF LIABILITY.
A. Exclusion of Damages. EXCEPT FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, DELIVERABLES, THIS AGREEMENT OR OTHERWISE, WHETHER BASED ON ANY CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA OR USE THEREOF, INTERRUPTION OF BUSINESS, OR FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES COULD HAVE REASONABLY FORESEEN BY IT.
B. Maximum Liability. In no event shall Basho’s liability to Client or any other person or entity arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the lesser of (i) One Hundred Thousand U.S. Dollars ($100,000) or (ii) the total fees paid by Client to Basho for the particular Service or Deliverable with respect to which such liability relates, whether such liability is based on an action in contract, warranty, strict liability or tort (including, without limitation, negligence) or otherwise.
C. Applicability. The limitations specified in this Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
D. Limitations Period. No action arising out of or in connection with this Agreement or any of the Services or Deliverables provided hereunder may be brought by either party more than one (1) year after the cause of action has accrued.
10. OWNERSHIP OF WORK PRODUCT.
A. Deliverables/Services. Unless otherwise agreed in writing in the applicable Statement of Work, as between Basho and Client, Basho shall own all right, title and interest in and to any intellectual property rights associated with the Services or Deliverables. Subject to Client’s payment in full for the Deliverables, Basho hereby grants to Client a non-exclusive, royalty-free, non-transferable limited license to use the Deliverables or Services as further detailed in the applicable SOW.
B. Basho Materials. Client acknowledges that as part of performing the Services or creating the Deliverables, Basho may use certain software development tools, know-how, processes, methodologies, templates, frameworks, algorithms or software developed or to be developed by or on behalf of Basho, which have been and/or will be reused by Basho for other clients (collectively, the “Basho Materials”). Notwithstanding anything to the contrary in this Agreement, Basho shall retain all right, title and interest in and to Basho Materials and, subject to Client’s payment in full, Basho hereby grants to Client a non-exclusive, royalty-free, non-transferable limited license to use any Basho Materials that are embedded in the Services or Deliverables solely for the purposes set forth in the SOW, and only so long as such Basho Materials (if any) remain embedded in the Deliverables or Services and are not separated therefrom. Client agrees not to reverse engineer or disassemble such Basho Materials
C. Third Party Materials. Client’s interest in and obligations with respect to any third party software or other materials incorporated in the Deliverables or Services shall be determined in accordance with the agreements and policies of such third parties, or as otherwise set forth in the applicable SOW.
D. General Knowledge and Skill. Notwithstanding anything to the contrary in this Agreement, Client agrees that Basho, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of providing Services or Deliverables hereunder. Client understands and agrees that Basho may perform similar services for third parties using the same personnel that Basho may utilize for rendering Services/Deliverables for Client hereunder, subject to Basho’s obligations respecting Client’s Confidential Information as set out herein.
E. No Licenses. No licenses will be deemed to have been granted by either party to any of its patents, trade secrets, trademarks or copyrights, except as otherwise expressly provided in this Agreement or a SOW.
A. Termination for Default. The Agreement may be terminated by either party (the “terminating party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “defaulting party”): (i) the defaulting party commits a material breach of any of its obligations under the Agreement and fails to cure such breach within thirty (30) days from the date of such written notice (unless a different cure period is expressly provided in the Agreement); or (ii) any filing of a petition in bankruptcy by the defaulting party, any appointment of a receiver for the defaulting party, any assignment for the benefit of the defaulting party’s creditors or any filing of a petition in bankruptcy against the defaulting party that is not dismissed within ninety (90) days from the date of filing.
B. Effects of Termination.
i) In the event either party terminates the Agreement pursuant to this Section 11, Basho will be entitled to payment for all Services and Deliverables rendered through the date of termination (including for work in progress).
ii) In addition, if Basho terminates the Agreement pursuant to Section 11.A, or the Client terminates a SOW without cause, the Client will also pay Basho for all costs reasonably incurred by Basho in anticipation of performance of the Services/Deliverables to the extent they cannot reasonably be mitigated, and any other termination costs Basho incurs, including, but not limited to, canceling any secondary contracts it undertook in anticipation of performance of the Services/Deliverables, and any other actual damages suffered by Basho.
C. Survival. This Master Services Agreement survives until expiration or termination of all Statements of Work that may be executed hereunder. In the event of termination or upon expiration of this Master Services Agreement, Sections 3, 4.B, 6 – 11 and 14-17 hereof will survive and continue in full force and effect.
12. Advertising. Client hereby authorizes Basho to list Client’s name on Basho’s website disclosing that Basho has provided the Services to Client, and to use Client’s name in any standard customer/client listing (or partial listing) published by Basho. Subject to the foregoing, neither party may use the other party’s name, logo, service or trademark in any advertising, press release, or express or implied endorsement without the other party’s prior written consent.
13. FORCE MAJEURE. Neither party shall be in default of any obligation (other than a payment obligation) due to causes beyond such party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials, provided that the party has exercised reasonable care to mitigate the impact of a Force Majeure event.
14. NOTICES. Notices provided hereunder shall be effective when delivered, shall be in writing, and shall either be: 1) delivered in person, 2) sent by certified mail or reputable courier, or 3) sent via electronic mail (if provided) to the appropriate address provided on the Statement of Work. Each Party undertakes to give notice to the other of any change of address five (5) business days in advance of the effective date of the change.
15. SEVERABILITY. If any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
16. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Each party submits to the jurisdiction of the state or federal courts sitting in the state of Washington, and each party agrees that it will bring any claim, action, lawsuit or proceeding arising out of or relating to this Agreement solely in a state or federal courts sitting in King County Washington. Each party waives any right it may have to a trial by jury with respect to any action or proceeding arising out of or relating to this Agreement.
A. Assignment. No interest herein shall be transferred in any manner by either party without the prior written consent of the other party except either party may, upon prior written notice to the other party (but without any obligation to obtain the consent of such other party), assign this Agreement to any entity who succeeds (by purchase, merger, operation of law or otherwise) to all or substantially all of the capital stock, assets or business of such party, if such entity agrees in writing to assume and be bound by all of the obligations of such party under this Agreement.
B. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
C. Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other prior or contemporaneous communications between the parties relating to the subject matter herein. The provisions of this Agreement shall not be changed, modified or waived in any way except when agreed in writing by an instrument signed by both parties and stating expressly that it constitutes a modification of this Agreement. Without limiting the foregoing, Basho may revise the MSA and all such revisions will be effective upon posting provided that no revision will be effective during the then current term of a Statement of Work.
E. Expenses. Except as otherwise provided herein or in any SOW, each party shall bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
F. Waiver. No waiver by either party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party giving such waiver. No waiver by either party with respect to any default, misrepresentation, or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
G. Mutually Negotiated. The parties agree that the terms and conditions of this Agreement (including any perceived ambiguity herein) shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the original or any further drafts of this Agreement.
H. Non-Exclusivity. This Agreement shall not preclude or limit in any way (i) the right of Basho to provide services of any kind or nature whatsoever to any individual or entity as Basho in its sole discretion deems appropriate or (ii) Basho developing for itself or for others, materials that are competitive with those produced as a result of the Services or Deliverables, irrespective of their similarity.