This Master Services Agreement (“Agreement”) is made between You (“Customer”) and Bureau of Internet Accessibility Inc., a Delaware corporation with a principal place of business at 5600 Post Road #114-174 East Greenwich, RI 02818 (“BOIA”) and shall become effective upon mutual execution of a Statement of Work (defined below) between Customer and BOIA. Customer and BOIA may each be referred to herein individually as a “Party” or collectively as the “Parties.”
In consideration of the covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. “Confidential Information” shall mean all non-public, proprietary information (including, without limitation, any and all information, technical data or know-how relating to ideas, inventions, concepts, software, designs, specifications, processes, data, source code, object code, research and development, and any and all information related to finances, costs, prices, vendors, customers and employees) that is disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party or any of its employees or agents (the “Receiving Party”), whether before, on or after the date hereof, whether directly or indirectly, and whether in writing, orally or by visual inspection. Notwithstanding the foregoing, “Confidential Information” shall not mean or include any information that: (a) is or becomes publicly known through no act or failure to act on the part of the Receiving Party; (b) was rightfully in the Receiving Party's possession prior to disclosure by the Disclosing Party; (c) became rightfully known to the Receiving Party, without confidentiality restrictions, from a source other than the Disclosing Party or any person acting on for or on behalf of the Disclosing Party; (d) is or was developed independently by the Receiving Party without use of the Confidential Information and without violation of any duty of confidentiality; or (e) is required to be disclosed by law.
1.2. “Deliverables” shall mean, collectively, any and all reports (including, without limitation, the WCAG 2.1 A/AA and WAI-ARIA 1.0 Audit Report and the Mobile Best Practices Audit Report), letters (including, without limitation, any Letters of Reasonable Accessibility) and other works to be prepared and delivered by BOIA pursuant to a SOW.
1.3. “Intellectual Property” shall mean, collectively, any and all patents, trademarks, service marks, copyrights, and other intellectual property or proprietary rights.
1.4. “Products” shall mean, collectively, any and all products to be provided by BOIA to Customer pursuant to a SOW, including without limitation any written or electronic training materials and any software products or services to which Customer is given access.
1.5. “Services” shall mean, collectively, any and all services to be provided by BOIA to Customer pursuant to a SOW, including without limitation, BOIA’s accessibility auditing, testing, and consulting services.
1.6. “Statement of Work” or “SOW” shall mean a statement of work that references this Agreement and has been mutually executed by the Parties.
2. Services, Products and Deliverables.
2.1. Statements of Work. The Parties shall mutually execute one or more Statements of Work setting forth the Services, Products and/or Deliverables to be provided to Customer by BOIA, as well as the fees and expenses to be paid by Customer in exchange therefor. Each Statement of Work shall be subject in its entirety to the terms and conditions of this Agreement. In the event of any conflicting provisions between this Agreement and any such Statement of Work, the provisions of this Agreement shall prevail unless the Statement of Work expressly provides otherwise.
2.2. Changes. Customer may, at any time, request a change to the Services, Products and/or Deliverables to be provided pursuant to a SOW by submitting a change request to BOIA in writing (a “Change Request”). Within five (5) business days of receiving such Change Request, BOIA will advise Customer in writing of any estimated impact that the requested changes may have on the cost and/or timeline for delivery of the affected Services, Products and/or Deliverables. If and to the extent the Parties agree, the Parties shall mutually execute an amendment to the applicable SOW reflecting the agreed upon changes to the Services, Products and/or Deliverables to be provided thereunder and to any costs and/or timelines associated therewith (a “Change Order”).
2.3. Acceptance. Upon BOIA’s delivery of a Product or Deliverable pursuant to a SOW, Customer shall have five (5) business days to review such Product or Deliverable and to determine whether such Product or Deliverable conforms to the applicable specifications expressly set forth in such SOW (collectively, the “Acceptance Criteria”). If, in good faith, Customer believes that a Product or Deliverable does not meet the Acceptance Criteria and wishes not to accept such Product or Deliverable, Customer must, within five (5) business days of BOIA’s delivery of such Product or Deliverable, notify BOIA in writing of Customer’s rejection of such Product or Deliverable and the reasons for such rejection, including a detailed explanation of the extent to which Customer believes specific Acceptance Criteria have not been satisfied. In the event that Customer properly rejects a Product or Deliverable in accordance with this Section 2.3, BOIA shall, at its cost and within a commercially reasonable period of time, resubmit the Product or Deliverable to Customer with such changes as are required for the Deliverable to conform to the Acceptance Criteria. If Customer does not, within five (5) business days of BOIA’s delivery of a Product or Deliverable, properly reject such Deliverable in accordance with this Section 2.3, the Product or Deliverable shall be deemed to have been accepted by Customer.
3. Invoice and Payment.
3.1. Fees and Expenses; Invoices. Each SOW shall set forth (1) the fees to be paid to BOIA by Customer hereunder, (2) whether and to what extent Customer is to reimburse BOIA for travel and other expenses incurred in connection with such SOW, and (3) the timing and manner in which BOIA is to invoice Customer for such fees and expenses. Unless otherwise provided in the applicable SOW, all invoiced amounts shall be payable in full within thirty (30) days following the invoice date (the “Payment Period”). Customer acknowledges and agrees that all invoiced amounts are exclusive of federal, state and/or other governmental taxes and excises, which such amounts (if any) shall be Customer’s responsibility. All amounts payable pursuant to this Agreement or any SOW are to be paid in United States dollars.
3.2. Disputed Amounts. Customer may withhold payment of any portion of an invoiced amount that it in good faith disputes as due or owing (“Disputed Amounts”) during the applicable Payment Period. In such case, Customer shall timely pay all invoiced amounts that are not Disputed Amounts and shall provide to BOIA a written explanation of the basis for disputing the Disputed Amounts. Any controversy relating to amounts owed by Customer under this Agreement or any SOW shall be considered a Dispute (as defined below) and shall be subject to resolution as provided in this Agreement. If at any point it is determined that a Disputed Amount is owed to BOIA, Customer shall pay such Disputed Amount to BOIA within five (5) days of such resolution. Failure to provide a written explanation of Disputed Amounts during the applicable Payment Period shall be deemed an acceptance of the invoiced amount, and a waiver of Customer’s right to dispute the same, absent manifest error.
3.3. Late Payments. Invoiced amounts (other than Disputed Amounts) that are not paid in full within five (5) days of the due date will be subject to a late fee in the amount of 1.5% of all unpaid amounts (including unpaid late fees) per month overdue. Customer agrees that it shall be responsible for all costs and expenses (including, without limitation, collection agency fees, court costs, and reasonable attorneys' fees) incurred by BOIA for purposes of collecting any amounts owed by Customer pursuant to this Agreement or any SOW or otherwise for purposes of enforcing the terms of this Agreement. Notwithstanding anything herein to the contrary, BOIA may suspend or terminate its performance under this Agreement and any SOWs immediately and without notice in the event that any invoiced amounts (other than Disputed Amounts) are not paid in full within five (5) days of the due date.
4. Term and Termination.
4.1. Term. This Agreement shall become effective upon mutual execution of a SOW between Customer and BOIA and shall remain in effect until terminated as provided herein.
4.2. Termination. This Agreement and/or any SOW may be terminated by either Party immediately upon the provision of a written notice of termination to the other Party: (a) in the event that (i) the other Party has breached a material term of this Agreement or of the applicable SOW, (ii) the terminating Party has notified such other Party of the breach in writing, and (iii) such other Party has failed to cure the breach within ten (10) business days of receiving such written notice of breach; (b) in the event that (i) the other Party is adjudged insolvent or bankrupt, or upon the institution of any proceeding against such other Party seeking relief, reorganization or arrangement under any laws relating to insolvency, or upon the appointment of a receiver, liquidator or trustee of any of such other Party's property or assets, or (ii) upon the liquidation, dissolution or winding up of the other Party's business; and (c) as otherwise provided in this Agreement or the applicable SOW.
4.3. Effect of Termination. Upon termination of this Agreement as provided hereunder, (a) each Party may demand the immediate return of all of such Party’s Confidential Information, (b) Customer may demand the immediate return of all Customer Materials, and (c) Customer shall promptly pay all amounts payable pursuant to this Agreement or any SOW, including with respect to any and all Services, Products and Deliverables provided or delivered to Customer prior to termination.
5. Representations and Warranties.
5.1. General. BOIA represents, warrants, and covenants that (a) the Services shall be performed by qualified personnel in a professional and workmanlike manner in accordance with current industry standards; and (b) neither the Services nor any Products or Deliverables provided to Customer by BOIA shall infringe, misappropriate, or otherwise violate the intellectual property rights of any third party (provided that BOIA makes no representation or warranty concerning, and is not liable for, any Customer Materials that are used or included in such Services, Products or Deliverables). Customer represents, warrants, and covenants that it shall not use the Services, Products or Deliverables in any manner contrary to applicable law. Each Party represents and warrants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder.
5.2. Disclaimer of All Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, BOIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT BOIA MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE SERVICES OR DELIVERABLES OR THE ISSUES IDENTIFIED THEREBY.
6. Confidentiality and Non-Solicitation.
6.1. Confidentiality. Each Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and not to disclose it to any third party without the prior written consent of the Disclosing Party. Each Receiving Party agrees to use the Confidential Information of the Disclosing Party only for purposes of performing the Receiving Party's obligations under this Agreement and/or any SOW. Further, the Receiving Party shall use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party of any Confidential Information of the Disclosing Party, but in no event less than reasonable care.
6.2. Non-Solicitation. For one (1) year following the effective termination or expiration of this Agreement and all SOWs executed in connection herewith, neither Party nor any of such Party’s affiliates shall, directly or indirectly, solicit or hire any employee or contractor of the other Party, except by means of a generally applicable solicitation that is not directed at any employees and/or contractors of the other Party.
7. Intellectual Property.
7.1. BOIA Materials. Except as provided herein, as between the Parties, BOIA shall retain all right, title, and interest in and to (i) all Intellectual Property of BOIA used in or otherwise associated with the Services, Products and Deliverables provided to Customer hereunder, and (ii) all works, designs, trade secrets, technical specifications and data, know-how and show-how, inventions, concepts, ideas, and improvements that are authored, conceived, devised, developed, reduced to practice or otherwise obtained by BOIA, whether existing prior to or arising out of BOIA's performance under this Agreement or any SOW, none of which shall be deemed a “work made for hire” under the Copyright Act of 1976 (collectively “BOIA Materials”), and nothing contained herein shall be construed to restrict, impair, transfer, license, convey, or otherwise alter or deprive BOIA of any of its intellectual property or other proprietary interests associated therewith. Subject to the foregoing, BOIA grants Customer a non-exclusive, non-transferable, worldwide, perpetual and limited right and license to access and use such BOIA Materials to the extent included in the Services, Products and/or Deliverables provided to Customer under this Agreement or any SOW.
7.2. Customer Materials; Publicity and Trademarks. Except as provided herein, as between the Parties, Customer shall retain all right, title, and interest in and to all Intellectual Property, property and information of Customer that is provided or made available to BOIA in connection with this Agreement (collectively “Customer Materials”), and nothing contained herein shall be construed to restrict, impair, transfer, license, convey, or otherwise alter or deprive Customer of any of its intellectual property or other proprietary interests associated therewith. Subject to the foregoing, Customer grants BOIA a non-exclusive, non-transferable, worldwide, perpetual and limited right and license to access and use such Customer Materials in connection with BOIA’s provision of the Services, Products and/or Deliverables hereunder. Further, Customer permits BOIA to identify Customer as a customer of BOIA in BOIA's marketing materials.
8.1. Customer agrees to indemnify, hold harmless, and defend BOIA and its officers, directors, employees, agents, representatives, insurers and affiliates from and against all damages, losses, liabilities, penalties, costs or expenses (including, without limitation, reasonable attorneys' fees and expenses) relating to, caused by or arising out of any claim, demand, litigation, suit, proceeding, judgment or other legal action initiated by any party other than BOIA and based on, arising from or related to Customer's use of the Services, Products or Deliverables (other than claims that the Deliverables or Products, excluding the Customer Materials contained therein, infringe a third party's intellectual property rights) or otherwise arising from or related to Customer’s breach of this Agreement.
8.2. BOIA agrees to indemnify, hold harmless, and defend Customer and its officers, directors, employees, agents, representatives, insurers and affiliates from and against all damages, losses, liabilities, penalties, costs or expenses (including, without limitation, reasonable attorneys' fees and expenses) relating to, caused by or arising out of any claim, demand, litigation, suit, proceeding, judgment or other legal action initiated by any party other than Customer and claiming that the Services, Products or Deliverables (other than claims relating to the Customer Materials contained therein) infringe a third party's intellectual property rights.
9. Limitation of Liability.
In no event shall either Party be liable to the other Party or any third party for any incidental, special, indirect, exemplary, or consequential damages of any kind, including, without limitation, lost profits, loss of time, money, data or goodwill, which may arise out of this Agreement (including any SOW) or the performance hereof, regardless of whether such Party has been advised, has reason to know, or in fact knows of the possibility thereof. If, notwithstanding the other provisions of this Agreement, BOIA is found to be liable to Customer for any damage or loss that arises out of or relates to this Agreement or to Customer's use of the Services, Products or Deliverables, BOIA's liability shall in no event exceed the lesser of (i) the actual damages of Customer and (ii) the total of any fees paid by Customer to BOIA in the six (6) months prior to the date of the initial claim made by Customer against BOIA.
10. Dispute Resolution; Governing Law.
10.1. Dispute Resolution. Before initiating any legal claim or action (except with respect to equitable relief), the Parties agree to attempt in good faith to settle any dispute, controversy, or claim arising out of or related to this Agreement or any SOW (collectively, a “Dispute”) through discussions, which such discussions shall be promptly initiated upon either Party’s receipt of a written notice of Dispute from the other Party. If the Parties cannot resolve the Dispute within ten (10) business days of a Party’s receipt of such written notice of Dispute, then the Parties may proceed to seek resolution of the Dispute through other available means. The Parties hereby consent to the exclusive jurisdiction of the federal and state courts in Rhode Island for purposes of any actions or claims brought in connection with this Agreement.
10.2. Governing Law. This Agreement shall be governed by the laws of the State of New York, U.S.A., without reference to any conflicts of law principles that would cause the application of the law of any other jurisdiction.
For so long as this Agreement remains in effect, BOIA will maintain: (a) general commercial liability insurance with a minimum per-occurrence limit of $2,000,000 and a minimum annual aggregate limit of $4,000,000; (b) professional liability errors and omissions insurance with a minimum per-claim limit of $1,000,000 and a minimum annual aggregate limit of $3,000,000; and (c) workers’ compensation insurance with a minimum per-accident limit of $1,000,000. Upon Customer’s request with reasonable notice, BOIA shall furnish Customer with such certificates and/or endorsements as may be appropriate to evidence the foregoing insurance coverage.
12. General Provisions.
12.1. Independent Contractor Status. BOIA is an independent contractor and not an employee, agent or representative of Customer. Nothing in this Agreement shall be construed as creating an employer-employee, partnership, joint venture or agency relationship.
12.2. Notices. Any notice required or permitted hereunder shall be in writing and shall be deemed duly given if delivered to a Party at its address set forth in the signature block of the latest SOW (or the most recent address provided by such Party for notice purposes) by (i) hand delivery, (ii) certified mail, postage prepaid, return receipt requested, or (iii) recognized overnight delivery service. A notice shall be deemed received on the date of delivery, if hand delivered or delivered by overnight delivery service, or five (5) days from date of mailing, if mailed by certified mail.
12.3. Entire Agreement; Severability. This Agreement, together with any SOWs, sets forth the entire agreement of the Parties, and supersedes any prior agreements or statements with respect to the subject matter hereof. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions of this Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be deemed substituted by a valid, enforceable provision that most closely matches the intent of the original provision.
12.4. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that BOIA may assign this Agreement in connection with a sale of BOIA's business, provided that the purchaser thereof agrees to assume all obligations of BOIA hereunder. This Agreement shall be binding upon and inure to the benefit of the Parties' respective successors and lawful permitted assigns.
12.5. Amendments and Waivers. This Agreement may be amended or modified only by a written instrument duly executed by each Party. No breach of any term of this Agreement shall be deemed waived unless expressly waived in writing by the Party that would otherwise have the right to assert such breach. Any failure or delay by either Party to exercise any right, power, or privilege under this Agreement shall not be deemed a waiver of any such right, power, or privilege on that or any subsequent occasion.
12.6. Force Majeure. If either Party is prevented from performing any of its obligations under this Agreement due to any cause beyond the Party's reasonable control, including, without limitation, an act of God, fire, flood, war, strike, government regulation, civil or military authority, or the acts or omissions of transmitters, utilities, providers or hackers, the time for such Party's performance shall be extended for so long as the applicable delay remains in effect.
12.7. Survival. In addition to any other provisions hereof that, by their terms, survive any termination or expiration of this Agreement, Section 6 (Confidentiality and Non-Solicitation), Section 7 (Intellectual Property), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10 (Dispute Resolution; Governing Law), and Section 12 (General Provisions) shall survive any termination or expiration of this Agreement.
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