This master services agreement (“Agreement”), dated __________________________ (“Effective Date”) is by and between Krumware LLC, a Delaware limited liability company located at 808 Lady Street Suite D-20, Columbia, SC 29201 (“Krumware LLC”), and _____________________, a ___________________________________ located at ________________________________________________ (“Client” and, together with Krumware LLC, the “Parties”, and each a “Party”). Krumware LLC desires to provide software development, support, and related consulting services to Client. The Client desires to retain Krumware LLC to provide said services. The Parties, therefore, agree as follows:
1. Services
Client hereby retains Krumware LLC to, and Krumware LLC hereby agrees to: (i) design and develop software applications, (ii) provide managed services for software applications, (iii) or provide other consultative services, in accordance with each attached Statement of Work (“SOW”).
In the event of a conflict between the terms of this Agreement and a statement of work, the terms of this Agreement shall govern unless otherwise explicitly stated in the statement of work.
2. Intellectual Property
All materials, including but not limited to, software, programs, source code, and object code, comments to the source or object code, specifications, documents, abstracts and summaries thereof (collectively, the “Products”) developed by Krumware LLC in connection with the provision of the services to Client, or jointly by Client and Krumware LLC, or by Krumware LLC pursuant to specifications or instructions provided by Client, shall belong exclusively to Client. Krumware LLC acknowledges that the Products shall be deemed “works made for hire” by Krumware LLC for Client, and, therefore, shall be the exclusive property of Client. To the extent the Products are not deemed “works made for hire” under applicable law, Krumware LLC hereby irrevocably assigns and transfers to Client all right, title and interest in and to the Products, including, without limitation, all patent and copyright interests, and agrees to execute all documents reasonably requested by Client for the purpose of applying for and obtaining domestic and foreign patent and copyright registrations.
Notwithstanding any provision of this Agreement to the contrary but subject to Intellectual Property given to Client hereunder, any routines, methodologies, processes, libraries, software, algorithms, ideas, tools or technologies created, adapted or used by Krumware LLC in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”), shall be and remain the sole property of Krumware LLC, and Client shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Products. In addition, notwithstanding any provision of this Agreement to the contrary, Krumware LLC shall be free to use any ideas, concepts, or know-how developed or acquired by Krumware LLC during the performance of this Agreement to the extent obtained and retained by Krumware LLC’s personnel as impression and general learning. Subject to and limited by Client’s intellectual property rights described in this section above, nothing in this Agreement shall be construed to preclude Krumware LLC from using the Development Tools for use with third parties for the benefit of Krumware LLC.
3. Confidentiality
a. Confidential/Proprietary Information of Client:
“Proprietary or Confidential Information” shall include, but is not limited to, all oral or written information brought to Krumware LLC’s attention by Client or observed by Krumware LLC from information in Client’s possession, or developed by Krumware LLC for Client in connection with this Agreement, further including written or oral contracts, trade secrets, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party as evidenced from written records dated prior to this Agreement; or (iii) rightly received on a non-confidential basis by the receiving party from a third party and not derived from Client; or (iv) is subject to disclosure under court order or other lawful processes.
Krumware LLC agrees to hold Client’s Proprietary or Confidential Information in strict confidence. Krumware LLC agrees not to make Client’s Proprietary or Confidential Information available in any form to any third party or to use Client’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Client’s Proprietary or Confidential Information shall remain the sole and exclusive property of Client. Krumware LLC agrees that in the event of use or disclosure by it other than as specifically provided for in this Agreement, the Client will be entitled to equitable relief.
b. Confidential/Proprietary Information of Krumware LLC
Krumware LLC agrees that, other than this Agreement, it will not disclose to Client any Krumware LLC confidential or proprietary information. In the event, Client is requested or required (by a valid order of a court or other governmental body or by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or other process or pursuant to federal and state securities laws, rules and regulations) to disclose this Agreement or any terms thereof Client will first provide Krumware LLC with prompt written notice of such request or requirement so that Krumware LLC may seek appropriate legal protection or waive Client’s compliance with the provisions of this Section. If failing the entry of legal protection or the receipt of a waiver hereunder, Client is, in the opinion of its legal counsel, compelled to disclose Krumware LLC’s Information, Client may disclose only that portion of Krumware LLC’s Information which its counsel advises that it is compelled to disclose.
4. Compensation
Client shall pay Krumware LLC at the rate agreed upon within the relevant SOW. Krumware LLC will invoice Client via email, at minimum monthly but no more than weekly. Client agrees to pay invoices promptly, such that Krumware LLC receives payment by check within 15 calendar days.
5. Term
This Agreement shall be effective as of the Effective Date and shall terminate one year after the effective date of termination of the last remaining SOW, except that Paragraphs 3, 6, and 7 shall survive termination of this Agreement.
6. Warranties
6.1. Krumware LLC represents, warrants, and covenants the following:
a. Krumware LLC will perform and provide all services in connection with this Agreement in a timely, professional and workmanlike manner, in accordance with the highest applicable industry standards and practices, utilizing only properly trained personnel, including any allowed third party contractors, having the requisite expertise and ability to perform the services under this Agreement. All personnel will be located in the United States. All deliverables provided as a result of the services will comply with the applicable written specifications and work for its intended purposes.
b. Krumware LLC shall comply with all applicable laws and regulations and shall obtain all applicable permits and licenses required in connection with its obligations under this Agreement. Without the generality of the foregoing, Krumware LLC shall comply fully with all applicable data protection, privacy, and similar laws and regulations.
c. The services and deliverables provided by Krumware LLC in connection with this Agreement will not violate or in any way infringe upon the rights of third parties including any copyrights, patents, trademarks, trade secrets, or other proprietary rights.
d. None of the deliverables provided by Krumware LLC in connection with this Agreement will contain any virus, timer, clock, counter, or other limiting design or routine that could cause the deliverables or any portion thereof to become erased, inoperable, impaired or otherwise incapable of being used in the full manner for which it was designed.
e. Unless otherwise approved by Client, none of the deliverables provided by Krumware LLC in connection with this Agreement will contain (i) any free or open-source software constituting Copyleft Materials, or (ii) any other free or open-source software, not in compliance with the applicable notice, disclaimer, or other licensing requirement. “Copyleft Materials” means materials subject to any license that requires as a condition of use, modification, or distribution that the licensed materials or materials combined or distributed with the licensed materials, be (A) disclosed or distributed in source code or similar form, (B) licensed for the purpose of making derivative works, or (C) redistributable at no charge. The term includes materials subject to the GNU General Public License, GNU Lesser General Public License, or similar licenses.
f. Unless otherwise expressed above, Krumware LLC does not make any warranty, express or implied, with respect to the services rendered hereunder or the Products, and hereby expressly disclaims all warranties, express and implied, with respect to such services and the Products, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
g. Krumware LLC makes no warranty of any kind, whether express or implied, regarding any third-party products, third-party content, or any software, equipment, or hardware obtained from third parties. This includes software developed for Client that is handed off to Krumware LLC to fix or to complete.
h. Krumware LLC shall not be liable for failures caused by third-party hardware or software (including Client’s own systems), misuse of the Products, or the negligence or willful misconduct of Client.
6.2. Client represents, warrants, and covenants as follows:
a. That any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Krumware LLC for inclusion in the Products are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements.
b. All software and specifications furnished to Krumware LLC for inclusion in the Products are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements.
7. Indemnification
7.1. Client Indemnity
Client agrees to defend, indemnify and hold Krumware LLC harmless from any and all third party claims arising out of Client or Client’s officers, employees, independent contractors, personnel, or authorized agents’ gross negligence, malfeasance, nonfeasance or willful misconduct or which arise from Client’s material breach of this Agreement or the failure to comply with any applicable federal, state, or local law including, without limitation, the federal patent, trademark and copyright laws.
7.2. Krumware LLC Indemnity
Krumware LLC agrees to defend, indemnify and hold Client harmless from any and all third party claims arising out of Krumware LLC or Krumware LLC’s officers, employees, independent contractors, personnel, or authorized agents’ gross negligence, malfeasance, nonfeasance or willful misconduct or which arise from Krumware LLC’s material breach of this Agreement or the failure to comply with any applicable federal, state, or local law including, without limitation, the federal patent, trademark and copyright laws.
7.3. General Indemnity
Promptly after receipt by a person entitled to indemnification pursuant to the Section 7.1 or Section 7.2 (the “Indemnified Party”) of notice of the commencement of any action, the Indemnified Party will, if a claim in respect thereof is to be or has been made against a party who has agreed to provide indemnification under Section 7.1 or Section 7.2 (the “Indemnifying Party”), promptly notify in writing the Indemnifying Party of the commencement thereof; but the omission to so notify the Indemnifying Party will not relieve it from any liability which it may have to the Indemnified Party except to the extent the Indemnifying Party is prejudiced by the delay or failure to notify it. In case any such action is brought against an Indemnified Party, and it notifies the Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to participate in, and, to the extent that it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense thereof, subject to the provisions herein stated, with counsel reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its election to so assume the defense thereof, the Indemnifying Party will not be liable to the Indemnified Party under this Section 7 for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation. The Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the Indemnifying Party if the Indemnifying Party has assumed the defense of the action with counsel reasonably satisfactory to the Indemnified Party; provided that the fees and expenses of such counsel shall be at the expense of the Indemnifying Party if (i) the employment of such counsel has been specifically authorized in writing by the Indemnifying Party or (ii) the named parties to any such action (including any impleaded parties) include both the Indemnified Party or parties and the Indemnifying Party and, in the judgement of counsel for the Indemnified Party, it is advisable for the Indemnified Party or parties to be represented by separate counsel (in which case the Indemnifying Party shall not have the right to assume the defense of such action on behalf of the Indemnified Party or parties, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the Indemnified Party or parties. No settlement of any action against an Indemnified Part shall be made without the consent of the Indemnifying Party and no Indemnifying Party, in the defense of any such claim or action, shall except with the consent of the Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. If the Indemnified Party fails to execute a release or other settlement agreement under circumstances where all conditions of the preceding sentence have been met, the Indemnifying Party shall have no further obligation to the Indemnified Party pursuant to this Agreement or otherwise.
8. Force Majeure
Krumware LLC shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Krumware LLC including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or telecommunication breakdown or power outage.
9. Non-Solicitation
Both parties agree that during the period in which Krumware LLC provides services and for a period of three years thereafter, neither party will encourage or solicit any employee, contractor, subcontractor, or consultant to leave the other party for any reason. Should either party desire to employ or contract (directly or indirectly via a different vendor) with current or former employees or contractors of the other party, the party shall contact the other party directly and not the individual(s) in question, to determine whether to proceed and, if so, to negotiate compensation to the other party. Compensation in this scenario will at a minimum include a fee commensurate with recruiter fees, plus replacement costs (another recruiter fee plus time spent hiring and training), plus opportunity costs (lost revenue while hiring and training the replacement).
10. Limitation on Liability
a. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE PRODUCTS, OR FOR ANY CLAIM BY ANY THIRD PARTY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. CLIENT AGREES THAT Krumware LLC’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO Krumware LLC.
c. Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations or violations of a third party’s intellectual property rights, including obligations of indemnification relating thereto.
11. Insurance
During the term of this Agreement, Krumware LLC shall maintain both Commercial General Liability Insurance and Professional Liability Insurance including errors and omissions. General Liability shall have at least a total aggregate limit of $2,000,000 and a per-occurrence limit of $1,000,000. Professional Liability shall have at least a total aggregate limit of $1,000,000 and a per-occurrence limit of $1,000,000. The Client may request that Krumware LLC obtain additional, supplemental, or modified insurance coverage at any time at the Client’s sole cost and expense. Krumware LLC reserves the right to change, modify, or substitute such policies from time-to-time upon the provision of 30 days’ prior written notice to the Client.
12. Taxes
Client shall be responsible for all sales, use and excise taxes, and any similar taxes, duties, and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Krumware LLC’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- Marketing
Each Party, with its written approval only, grants the other Party the right to use their name and service marks in marketing materials or other oral, electronic, or written promotions, which may include naming Client as a client of Krumware LLC and a brief scope of services provided. Either Party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other Party and such approval shall not be unreasonably withheld.
14. Independent Contractor Status
The relationship of Krumware LLC to Client will be that of an independent contractor, and neither Krumware LLC nor any employee or subcontractor of Krumware LLC will be deemed to be an agent or employee of Client. It is expressly understood that this undertaking is not a joint venture.
15. Successors and Assigns
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
16. Entire Agreement
This Agreement, including and together with any related statements of work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any statement of work, the terms and conditions of this Agreement shall supersede and control. This Agreement may be amended only by a written agreement signed by an authorized representative of each Party.
17. Severability
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18. Waiver
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Choice of Law and Limitation of Action
This Agreement will be governed and interpreted by the laws of the United States and of the State of South Carolina, without regard to its conflicts of law provisions. No action by Krumware LLC or Client arising under this Agreement may be brought at any time more than two years after the facts occurred upon which the cause of action arose.
20. Disputes
Client and Krumware LLC agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within 10 days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Richland County, South Carolina and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least 10 years’ experience in the practice of law and at least five years’ experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the courts of South Carolina sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of South Carolina or any other applicable law. The arbitrator must issue his or her resolution of any dispute within 30 days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.