Master Service Agreement
Last Updated: March 24, 2021
Sales Innovator, LLC Master Services Agreement
This Master Services Agreement (“Agreement”) is entered into as of _____________, 2018 (the “Effective Date”) by and between __________, a _______ company with its principal place of business at _________ (“Client"), and Sales Innovator, LLC, an Texas Limited Liability Company, with its principal place of business at 237 North 2nd East, Suite 210, Rexburg, ID 83440 ("Company"; each a “Party” and both the “Parties”).
NOW THEREFORE, in consideration of the payment of the applicable Fees (described below) and the mutual promises herein, Company hereby agrees to provide the services or licenses as described in one or more attached Statements of Services (“SOS”), subject to the terms and conditions of this Agreement.
1. Term of Engagement. The term of this Agreement (“Term”) shall commence as of the Effective Date, continue for an initial term of one (1) year, and shall terminate thirty calendar days after the latest termination date of any mutually agreed SOS, unless otherwise agreed in writing by the Parties, or otherwise terminated pursuant to the terms of this Agreement. This Agreement may be revived by a mutually agreed SOS at any time.
2. Nature of Services. Company may provide shared call center facility licensing, sourced talent services, training, outbound sales, calling, appointment-setting, marketing, video editing, web development, business strategy and a range of other services. Each SOS identifies the services or licenses Client has purchased (“Services”) for Client as set forth in an applicable SOS executed by the Parties from time to time. Any SOS executed on or after the Execution Date shall be incorporated into this Agreement and considered an addendum hereto. Depending on the Services requested, the following additional terms shall apply to the Services:
Facility Hosting License (Appendix A)
Professional Services Agreement (Appendix B)
Sourced Talent Agreement (Appendix C)
2.1 Integration and Superiority of SOS. All terms of this Agreement shall apply to and govern each SOS. Additional terms attached to an SOS shall only be applicable to that specific SOS and shall not govern or be applicable to any other SOS, unless expressly stated therein. In the event of any express conflict between the terms of this Agreement and the terms of an SOS, the terms of the SOS shall govern. Any work or services performed by Company prior to the execution of this Agreement or an applicable SOS shall be subject to and governed by this Agreement.
3. Relationship of the Parties.
3.1 Independent Contractor. Nothing contained herein shall be deemed to create any association, partnership, joint venture or the relationship of principal/agent or employer/employee between Company on the one hand and Client on the other hand; Company is an independent contractor and shall perform all services hereunder as such.
3.2 No Authority to Bind. Neither Party nor any employee or subcontractor employed by either party shall act, appear to act, or be deemed for any purpose whatsoever to be an agent, employee, servant or representative of the other Party. Neither Party shall have the authority to make financial commitments on behalf of the other party, nor shall either Party have the authority to incur any financial obligations in the other Party’s name without the express written approval of the other Party or as expressly stated herein. Any attempt to do so shall be considered a material breach of this Agreement.
3.3 Employees. Unless otherwise agreed in an SOS, Client shall be responsible for the payment of compensation to their own employees and subcontractors and shall be responsible for the proper reporting and payment of all federal, state, and local taxes due on payments made to Company by Client. The Parties shall pay all employment taxes, including, without limitation, worker’s compensation, statutory disability insurance and unemployment insurance, applicable to the respective Party and its respective employees and subcontractors. Each Party shall have the sole responsibility for providing such benefits to its respective employees and/or subcontractors. Neither Party shall be responsible for the responsibilities, taxes, or otherwise of the other Party.
4. Compensation. Compensation for each project shall be as set forth in the applicable SOS. If no compensation is expressly stated in the applicable SOS, Company shall be compensated on a time and materials basis at Company’s then standard rate card.
5. Expenses. Except as explicitly agreed in an SOS, the SOS price is inclusive of all expenses associated with, incurred by Company on behalf of Client, or related to the performance of work or services rendered under this Agreement (“Expenses”).
6. Billing and Payment Procedures.
6.1 Billing. All fees are due annually in advance, at the beginning of each SOS. Notwithstanding, Company may invoice Client in equal financed installments at 0% APR for 12 months (“Monthly Charge”) only if Client pays in automatic recurring installments using a credit card, debit card or direct deposit/ACH. Further, Client shall be entitled to a 5% discount if all fees are paid at the beginning of an SOS by any method.
6.2 Late Fees. Any payment not received within ten (10) calendar days of the invoice date of the Initial Invoice shall be subject to a late payment fee of 1.5% per month.
6.3 Packages. Package names and details are available per request.
7. Representations and Warranties. The parties represent and warrant the following:
7.1 Authority. Each Party has full right, power and authority to enter into, execute and fully perform this Agreement and to grant all of the rights granted by it hereunder.
7.2 Taxes. Each Party shall have the sole responsibility of paying any and all withholding, payroll and employment taxes, worker's compensation insurance premiums and all other taxes and charges incidental to their employees’ rendition or use of Services under this Agreement.
7.3 Workers’ Compensation. Each Party has and will maintain at all times during the Term workers’ compensation insurance as
required by law.
7.4 Compliance with Law. Each Party will comply with all applicable laws, statutes, ordinances, codes, rules, regulations and orders of the United States, and the states, cities or other political subdivisions thereof having jurisdiction.
7.5 Disclaimers. COMPANY PROVIDES ALL SERVICES AND FACILITIES TO CLIENT "AS IS," AND “WHERE IS.” COMPANY MAKE NO WARRANTIES, EXPRESS OR IMPLIED, DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND FACILITIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY CANNOT AND DOES NOT GUARANTEE AND DOES NOT PROMISE TO CLIENT, ANY SPECIFIC RESULTS FROM USE OF THE SERVICES. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES OR FACILITIES MEETS APPLICABLE LEGAL STANDARDS OR IS SAFE AND SUITABLE FOR YOUR INTENDED USE.
7.6 No Third-Party Beneficiaries. Unless explicitly stated in the SOS, the applications, products, services, or other materials and resources provided by Company to Client are for the sole use and benefit of and by Client, with no intended or unintended third-party beneficiary. Client will not apportion, assign, utilize or otherwise exploit the applications, products, services, or other materials and resources provided by Company to or for the benefit of any other entity or individual.
7.7 Best Efforts. Company shall use its best efforts to provide the Services to Client.
8. Disclaimers and Limitations of Liability.
8.1 COMPANY SHALL NOT BE LIABLE FOR ANY LOSSES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS.
8.2 IN NO EVENT WILL EITHER PARTY (OR THEIR LANDLORDS, RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS) BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE, PREMISIS, OR EQUIPMENT, OF ANY NATURE WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
8.3 Notwithstanding anything else to the contrary contained in this Agreement, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S LIABILITY TO CLIENT OR ANY PARTY CLAIMING THROUGH PARTY, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID FOR THE SERVICES, IN THE THREE MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
9.1 Company shall defend, indemnify and hold harmless Client from and against any and all claims, liabilities, damages, losses, costs or expenses (including, without limitation, reasonable attorneys' and witness’ fees) arising out of or connected with any act, omission, and/or breach of Company’s representations, warranties or obligations hereunder, including: (i) any injury to person or property, including, without limitation, injuries resulting in death. The foregoing indemnification obligation is subject to Client providing to Company (1) prompt written notice of any such claim, and (2) all available information and assistance relating to the claim.
9.2 Client shall defend, indemnify in advance, and hold harmless Company from and against any and all claims made by third parties for liabilities, damages, losses, costs or expenses (including, without limitation, reasonable attorneys' and witness fees) arising out of or connected with any act, omission, and/or breach of Client’s representations, warranties or obligations hereunder and/or any material supplied by Client to Company and used as expressly authorized by Client, and/or any rights or licenses granted by Client to Company. The foregoing indemnification obligation is subject to Company providing to Client (i) prompt written notice of any such claim, (ii) all available information and assistance relating to the claim, and (iii) sole control over defense and settlement of the claim.
10. Insurance. Company shall maintain the following insurance: (i) Workers Compensation and Employers Liability Insurance to the extent required by law if employees are working for Sales Innovator. If employees are working for the client, then the client will be responsible for providing workers compensation and employer liability insurance, (ii) Commercial General Liability Insurance with limits of not less than $1,000,000 per occurrence and $1,000,000 in the aggregate, subject to no contractual limitations other than those found in a standard commercial general liability form and subject to no deductible; (iii) Errors & Omissions Insurance with limits of not less than $1,000,000 per occurrence and $1,000,000 in the aggregate, subject to no deductible, and (iii) Company will provide umbrella/excess coverage in minimum limits of $1,000,000 per occurrence and $1,000,000 in the aggregate. Company will provide Client with a certificate of insurance on a yearly basis upon request, indicating coverage in minimum limits of $2,000,000.00 per occurrence and $2,000,000.00 in the aggregate.
11.1 For Material Breach. Either party shall have the right to terminate this Agreement or any SOS for material breach. If termination is for material breach, such termination shall be effective thirty (30) calendar days after receipt by the breaching party of written notice indicating the material breach from the non-breaching party, unless such breach is cured by the non-terminating party within such thirty (30) calendar day period, and the non-breaching party shall retain all its rights in law and equity.
11.2 Without Cause. Either party may terminate this Agreement or any SOS for or without cause, and such termination shall be effective upon thirty (30) calendar days prior written notice to the other Party, in which event both parties will continue to honor the obligations as outlined herein and Company shall be paid for any and all services rendered and work performed. If Client cancels without cause, Client shall also pay Company the unpaid financed balance of any existing SOSs (“Cancellation Loan Payoff”). Both parties agree that the Cancellation Loan Payoff is reasonably calculated to cover actual loss caused by the termination, and is not a penalty.
11.3 For Non-Payment. In the event of non-payment for any services or materials as provided under this Agreement or an applicable SOS, which non-payment is not cured within fifteen (15) calendar days of notice from Company, Company shall reserve the right to terminate this Agreement and/or the respective SOS, suspend any and all services. Moreover, Company will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any application limitations period, or preserve a superior position with respect to other creditors.
11.4 Return of Materials. Company agrees that upon termination for any reason, including the end of the Term hereof, Company will, upon request from Client, at Client’s expense, turn over to Client all materials and information which have been either supplied by or paid for by Client in Company's possession or control in connection with the services provided under this Agreement.
11.5 Payment Upon Termination. Upon termination of this Agreement, Client shall immediately pay all Client monies, fees and expenses incurred and committed by Company (“Fees”) prior to termination. Upon receipt of any and all fees owed by Client to Company, Company shall also deliver all work products and deliverables whether complete or incomplete. Termination of this Agreement shall not relieve either party of its obligations under this Agreement to protect the Confidential Information of the other party.
11.6 Termination of SOS(s). Upon termination of this Agreement, any and all SOS(s) subject to this Agreement shall be deemed terminated as of the date of the termination of this Agreement.
12.1 The Parties represent and warrant that, except as specifically authorized by either Party in writing, information developed or acquired by or furnished to the other Party in the performance of this Agreement shall be used only in connection with services provided hereunder. Both Parties agree that all materials and any and all matters concerning the other Party and/or its owners, partners, subsidiaries and affiliates, learned by them during the course of their services hereunder, as well as the terms and conditions of this Agreement, are trade secrets or are otherwise proprietary or confidential (“Confidential Information”) and are not to be disclosed, disseminated or otherwise revealed, in whole or in part, in any manner whatsoever, either during or after the Term of this Agreement, to anyone other than the Party’s attorneys, on a need-to-know basis, accountants or their employees, providing such persons treat such matters in accordance with this Paragraph. However, the Parties may disclose Confidential Information in accordance with judicial or other governmental order, provided the Party shall give the other Party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
12.2 Notwithstanding the foregoing, this paragraph shall not apply to any information or materials that (i) are or subsequently become publicly available without the receiving Party’s breach of any obligation owed to the disclosing Party; (ii) became known to the receiving Party prior to the disclosing Party’s disclosure of such information to the receiving Party; (iii) became known to the receiving Party from a source other than the disclosing Party other than by a breach of an obligation of confidentiality owed to the disclosing Party; or (iv) is independently developed by the receiving Party.
12.3 This section of this Agreement shall survive the termination of this Agreement for one (1) years.
13. Intellectual Property. Each Party owns and retains in whole and in part its respective intellectual property. Except as expressly set forth in an SOS, Company conveys no additional intellectual property to Client under this agreement.
14. Suggestions and Feedback. Either party may from time to time provide suggestions, comments or other feedback to the other
party with respect to Confidential Information provided originally by the other party (hereinafter "Feedback"). Both parties agree that all Feedback is and shall be entirely voluntary and shall not, absent separate agreement, create any confidentiality obligation for the Receiving Party. However, the Receiving Party shall not disclose the source of any Feedback without the providing party's consent. Feedback may or may not be clearly designated as such and, except as otherwise provided herein, each party shall be free to disclose and use such Feedback as it sees fit, entirely without obligation of any kind to the other party. The foregoing shall not, however, affect either party's obligations hereunder with respect to Confidential Information of the other party.
15. Trademarks, Press Releases, and Promotional Materials. Client grants to Company the right to use its name and applicable trademark for the purposes of identifying past and/or present representative clientele, press releases, advertising, promotional material or other public statement, without the prior written consent of the Client.
16. Third Party Beneficiary. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties, and their respective successors and assigns, and is made solely and specifically for their benefit. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
17.1 Compliance. Both Parties shall abide by all applicable laws and regulations relating to the services to be performed hereunder
17.2 Assignment. This Agreement is personal in nature and may not be assigned or subcontracted by either Party without the prior written consent of the other Party, except to a third party obtaining substantially all of a Party’s assets; any attempt to assign without receiving such consent shall be void and of no effect.
17.3 Governing Law and Jurisdiction. This Agreement shall be construed in accordance with and governed by the laws of the State of Idaho, excluding the CISG, applicable to contracts entered into and wholly to be performed therein without regard to its conflicts of laws provisions. Any litigation, action or proceeding arising out of or relating to this Agreement shall be instituted in any state or federal court located within Rexburg, ID and the parties hereby submit to the jurisdiction of any such court in any such litigation, action or proceeding.
17.4 Disputes and Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by final and binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Rexburg, ID and be conducted in the English language. If the controversy or claim is due to non-payment for services under this Agreement, the arbitrator shall award any and all reasonable expenses including arbitration filing fees, attorney fees, expert fees, the arbitrator’s fees, and any and all fees related to the arbitration, to the prevailing party. For matters of less than $1,000,000.00 USD in value, there shall be one neutral arbitrator either agreed upon by both parties or selected by the AAA. For all disputes in excess of $1,000,000.00 USD, there shall be three arbitrators, with each party selecting one neutral arbitrator, and the third arbitrator to be neutral and selected by the AAA. Notwithstanding the foregoing, the Parties may by agreement in writing, to enter into non-binding mediation to resolve any controversy or claim relating to this Agreement within fourteen (14) calendar days of notice being served upon the alleged breaching party by the non-breaching party.
17.5 Force Majeure. Neither party shall have any liability to the other for any failure to perform or delay in performance hereunder if such failure or delay is caused by or results from circumstances beyond such party's control and without such party's fault or negligence, including, without limitation, acts of God, civil unrest or acts of war or terrorism (including, without limitation, safety or security concerns relating thereto), labor disturbances, fire or other casualty, damage to either Party’s facilities, failure of transportation facilities, power or internet failures, or government acts or regulations ("Force Majeure Events").
17.6 Notices. Any notice required or permitted under this Agreement shall be given in writing and shall be deemed given on the date sent if given personally, via electronic mail, or by facsimile with a copy mailed; or the next business day after given to Federal Express or similar express courier or three (3) business days after being sent by first-class registered or certified mail. If by electronic mail, the electronic mail must be sent to the respective Party’s Representative.
Notices shall be sent to the following:
If to Company:
51 N. Hidden Valley Rd.
Rexburg, ID 83440
If to Client:
If at any time the addresses above should change, the Party whose contact information has changed shall give Notice to the other Party as soon as practically possible, no later than ten (10) business days after such change.
17.7 No Waiver. The failure of either party to insist on the other party's strict compliance with the terms and conditions contained in this Agreement shall not constitute a waiver of such party's right to insist that the non-performing party in the future strictly comply with any and all of the terms and conditions contained in this Agreement.
17.8 Remedies Cumulative and Limitations. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of any party. However, Client’s remedies shall be limited to the value of the applicable SOS, with no further damages, whether direct or indirect, permitted.
17.9 Non-Exclusivity. This Agreement is non-exclusive. Nothing herein prevents either party from entering into similar agreements with other entities.
17.10 Modifications. This Agreement may only be modified in writing and executed by regular mail or facsimile, and must reference the section of this Agreement to be modified. Otherwise, any and all modifications and changes shall be considered a modification of the respective or applicable SOS.
17.11 Severability. If any clause or provision of this Agreement shall be held to be invalid or unenforceable, such clause or provision shall be construed and enforceable as if it has been more narrowly drawn so as not to be invalid or unenforceable and such invalidity or unenforceability shall not affect or render invalid or unenforceable any other clause or provision of this Agreement.
17.12 Survival. The conditions, representation, warranties and indemnifications contained in this Agreement shall survive the termination or expiration of services and the payment of compensation hereunder.
17.13 Headings. The head notes and capitalization contained in this Agreement are for convenience only and are not intended in any way to define or limit the construction or interpretation of any paragraph of this Agreement.
17.14 Counterparts. This Agreement may be executed in any number of counterparts (including facsimile counterparts), each of which will be deemed an original, but all of which taken together shall constitute one single agreement between the parties.
17.15 Updates. This Agreement was last updated August 18, 2018.
17.16 Entire Agreement. This document, including all appendices and SOSs, contains the entire agreement and understanding between Company on one hand and Client on the other relating to the services to be provided hereunder and supersedes all prior agreements, negotiations or understandings, whether written or oral between the parties. Accordingly, this Agreement may not be altered, amended, modified, or otherwise changed, nor may any of the terms hereof be waived, except by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date indicated below.
Sales Innovator, LLC