This MASTER SERVICE AGREEMENT (“Agreement”) made and entered into between Holzmann Enterprises, Inc. dba Low Code Road (hereinafter “Company”) and you, or if you represent an entity or other organization, that entity or organization (in either case, “Client”) as of the date companies entered into a contractual agreement (the “Effective Date”), is comprised of the terms and conditions below and all Purchase Orders and Statements of Work (each, a “Statement of Work”) executed by the parties that expressly reference this Agreement as a component thereof, together with all exhibits and schedules to the foregoing, each of which is incorporated herein and made a part of this Agreement. In the event of a conflict between the provisions of a Statement of Work and the Agreement, the Agreement shall govern unless the Statement of Work expressly states otherwise.
The parties therefore agree as follows:
“Agreement” means this Master Services Agreement and all Statements of Work or Exhibits attached hereto or thereto as any of the foregoing may be amended from time to time by the parties hereto.
“Confidential Information” means any information of any type in any form that (i) is disclosed to or observed or obtained by a party from the other party (or from a person that recipient knows or reasonably should assume has an obligation of confidence to a party) in course of, or by virtue of, this Agreement and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. For purposes of this Agreement, however, the term “Confidential Information” specifically shall not include any portion of the foregoing that (i) was in the recipient’s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person or body of which the recipient knew or which, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction. No combination of information will be deemed to be within any of the foregoing exceptions, regardless whether the component parts of the combination are within one or more exceptions. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information.
“Deliverable” means any tangible (including in electronic form) or intangible property delivered or to be delivered to or on behalf of Client pursuant to Company’s obligations under a Statement of Work.
“Infringement Claim” means a claim brought by a third party (other than an affiliate of Client and other than a non-practicing entity) during the term of this Agreement or thereafter that any Deliverable infringes such third-party’s copyright pursuant to the laws of the United States or misappropriates such third-party’s trade secrets pursuant to the laws of a state of the United States.
“Pre-existing Materials” means software code, method, process, procedure, know-how, or the like utilized by Company, that was developed or otherwise acquired by Company prior to the Effective Date of the then current Statement of Work. Existing intellectual property means any confidential or proprietary information, whether patentable, copyrightable or not, created or obtained by each party prior to the effective date of this agreement.
“Services” means Software development services, integrations services or other professional services provided by Company under a Statement of Work.
“Software” means any computer program (including mobile applications and related programs) developed for Client by Company hereunder, including any bug fixes, maintenance releases, updates, upgrades, and new versions thereof, including any new computer programs developed hereunder.The term “including” shall mean “including without limitation” unless otherwise expressly provided in a given instance.
- Services; Statements of Work.
- Engagement. Client hereby engages Company to provide, and Company agrees to provide, the services and Deliverables described in each Statement of Work executed by the parties hereunder from time to time during the term of this Agreement.
- Form of Statement of Work. Each Statement of Work shall be in the form attached as an Exhibit. The Statement of Work shall describe the Services and any Deliverables to be provided, the timing and conditions for providing such services and Deliverables, the fees and expenses (or basis for determining fees and expenses) and timing of such payments, any reporting requirements, and such other matters as the parties deem appropriate; provided, however, that the failure of a Statement of Work to comply with the foregoing standards shall not, in itself, invalidate such Statement of Work.
- Changes to Statement of Work. Any amendment or supplement to a Statement of Work shall be by written agreement of the parties, which shall be signed by each party except that such agreement may be documented in the form of e-mail transmission and relied upon by the proposing party if (i) the party receiving a proposal for such amendment or supplement by e-mail expressly agrees to such proposal by e-mail or other written communication and (ii) such amendment or supplement does not materially change the amount or timing of fees or expenses to be paid thereunder.
- Client Responsibilities. Client shall fully cooperate with Company and promptly respond to requests for information, including technical data, or access to facilities or resources. Client’s failure to comply with this Section 3 shall constitute breach of the Agreement under Section 9(iii).
- Fees and Expenses; Late Payments; Taxes.
- Fees and Expenses. Client shall pay fees, expenses, and other charges set forth in a Statement of Work. Company will invoice Client on a regular basis. Payment of each invoice is due within 15 days of receipt of the invoice as specified in the Statement of Work.
- Late Payments. If Client is delinquent in payment of any portion of an invoice that it has not disputed in good faith, Company may, in addition to other remedies it may have, including termination, suspend access to the Software and/or provision of all services to Client. Client agrees to pay interest on delinquent amounts at the rate of 1½% per month (or, if lower, the maximum amount permitted by law) that a payment is overdue. If a Statement of Work provides for different payment terms, then those terms apply.
- Taxes. Company shall be responsible for paying all required federal, state, and local taxes related to the amounts received by Client pursuant to this Agreement. Client shall not withhold FICA or any federal, state or local income or other tax, make unemployment contributions, or obtain workers’ compensation insurance on behalf of Company.
- Pre-Purchased Service Hours.
- Purchase of Service Hours: Customer may purchase from Company a block of hours (“Service Hours”) in accordance with the terms and pricing as set forth in the applicable Statement of Work (SOW) or order form. These Service Hours may be used by Customer to request performance of the services described in the SOW.
- Rate: Service Hours are sold in blocks at a fixed rate per hour (“Hourly Rate”), as detailed in the SOW. The Hourly Rate is agreed upon by the Customer and Company prior to the purchase of any block of Service Hours.
- Usage of Service Hours: Service Hours are drawn down in increments as determined by the Company’s tracking of time spent on Service activities for the Customer.
- Tracking and Reporting: Company will track the use of Service Hours and will provide Customer with periodic reports detailing the services performed and the number of Service Hours deducted from the Customer’s pre-purchased block.
- Expiration: Unless otherwise stated in the SOW, Service Hours must be used within 12 months from the date of purchase, after which any unused hours will expire with no value and cannot be redeemed for cash or credit.
- Refund Policy: Service Hours are non-refundable except as may be required by applicable law or as otherwise specifically agreed in writing by Company.
- Renewal: Customer may purchase additional Service Hours at any time. The terms and conditions applicable to such additional Service Hours shall be as set forth in a new SOW or order form.
- Scope of Services: The use of Service Hours is limited to the services outlined in the SOW. Any services rendered outside of this scope may require a separate agreement or the purchase of additional Service Hours.
- Overage: In the event that Customer uses more hours than are present in the purchased block, Company will invoice Customer for such additional hours at the Hourly Rate specified in the SOW, or at then-current standard rates if not specified.
- Ownership of Deliverables. Except for Pre-existing Materials, all Deliverables that are subject to copyright protection and reduced to tangible form in whole or in part by Company shall be deemed to be “work made for hire” as that term is used in the United States Copyright Law, 17 U.S.C. 101 et seq. To the extent any Deliverables are not “work made for hire” as contemplated in the preceding sentence, Company hereby assigns to Client the entire right, title, and interest in and to all such Deliverables and in and to all proprietary rights in or based upon such Deliverables. Upon request of Client, whether during or following the term of this Agreement, Company will execute such assignments, oaths, declarations, and other documents as may be prepared by Client to effect the purposes of this paragraph. Client shall not acquire by virtue of this Agreement any ownership interests or rights in any Pre-existing Materials. Client’s ownership rights in the Deliverables is subject to Client’s payment in full of all fees owed to Company under this Agreement or a Statement of Work.
- License to Company. Client grants to Company a non-exclusive, royalty-free license during the term of this Agreement to use and disclose Client Property as required to perform its obligations under this Agreement. Client represents and warrants that (i) it owns or has the full and valid legal right and authority, and will continue to own or maintain the full and valid legal right and authority, to grant to Company during the term of this Agreement the license set forth in this paragraph and (ii) Company’s use of Client Property as provided herein will not infringe any intellectual property or proprietary right or violate any trade secret or otherwise violate any right of a third party.
- Security of Confidential Information. In addition to any other restrictions or obligations imposed at law or provided under this Agreement, each party possessing Confidential Information of the other party will maintain all such Confidential Information under secure conditions, using reasonable security measures and in any event not less than the same security procedures used by such party for the protection of its own Confidential Information of a similar kind.
- Non-Disclosure Obligation. Except as otherwise may be permitted by this Agreement, neither party shall disclose any Confidential Information of the other party to any third party without the express prior written consent of the other party; provided, however, that either party may disclose appropriate portions of Confidential Information of the other party to those of its employees, contractors, agents, and professional advisors having a substantial need to know the specific information in question in connection with such party’s exercise of rights or performance of obligations under this Agreement provided that all such persons (i) have been instructed that such Confidential Information is subject to the obligation of confidence set forth by this Agreement and (ii) are bound either by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
- Compelled Disclosure. If either party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such party will not be liable to the other party for disclosure of Confidential Information required by such order if such party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such party immediately shall move for or otherwise request a stay of such order to permit the other party to respond as set forth in this paragraph; (ii) such party immediately shall notify the other party of the motion or order by the most expeditious possible means; and (iii) such party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other party; and (iv) such party shall exercise its best efforts to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
- Non-Use Obligation. Except as expressly authorized in this Agreement, during the term of this Agreement and forever thereafter (or for such shorter period as may be imposed by applicable law), neither party shall use any Confidential Information of the other party, except at the request of and for the benefit of such other party, without the express prior written consent of the other party.
- Copying of Confidential Information. Except as otherwise may be permitted by this Agreement, neither party shall copy or otherwise reproduce any part of any Confidential Information of the other party, nor attempt to do so, without the prior written consent of the other party. Any embodiments of Confidential Information of a party that may be generated by the other party, either pursuant to or in violation of this Agreement, will be deemed to be the sole property of the first party and fully subject to the obligations of confidence set forth herein.
- Proprietary Legends. Without the other party’s prior written consent, neither party shall remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other party’s rights.
- Post-Termination Procedures. Except as otherwise provided in this Agreement, immediately upon any termination of this Agreement or other termination of a party’s right to possess and/or use Confidential Information, each party shall turn over to the other party (or destroy and certify the same in writing, if agreed in writing by the other party) any embodiments of any Confidential Information of the other party.
- Term; Breach; Termination. The term of this Agreement shall commence on the Effective Date and, shall expire upon the latter of (i) the expiration or termination of all Statements of Work for which expiration or termination provisions are set forth therein, (ii) 1 year from the Effective Date, or (iii) 5 days after providing the other party with notice of a breach that remains uncured for 15 days. Either party may terminate this Agreement for convenience by providing 30 days prior written notice to the other party.
- Warranties. Company represents and warrants that:
- Services described in a Statement of Work will be performed using duly qualified and experienced personnel; and
- that neither the Software or Documentation shall infringe on the copyright of any other person.
- Disclaimers and Limitations.
Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, COMPANY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE, THE SERVICES PROVIDED BY COMPANY, OR THE OPERATION OF THE SOFTWARE ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. COMPANY MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Disclaimer of Consequential Damages. COMPANY HAS NO LIABILITY WITH RESPECT TO THE SOFTWARE, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitations of Remedies and Liability. COMPANY’S TOTAL LIABILITY TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO COMPANY BY THE CLIENT IN RESPECT OF SERVICES PROVIDED HEREUNDER DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
- Nature of Relationship; Subcontractors. Company shall provide all services hereunder as an independent contractor to Client. Nothing contained herein shall be deemed to create any agency, partnership, joint venture, or other relationship between the parties or any of their affiliates, and neither party shall have the right, power, or authority under this Agreement to create any duty or obligation on behalf of the other party. Company may use subcontractors without the prior written consent of Client.
- Other Provisions.
- Notice. Except as otherwise expressly provided herein, notices shall be given under this Agreement by personal delivery, by certified or registered U.S. mail from within the United States, or with next-business-day instruction by a recognized overnight document delivery. Except as otherwise expressly provided herein, notices given under this Agreement shall be deemed delivered (i) when personally delivered, (ii) on the second business day after deposit when sent by certified or registered U.S. mail from within the United States, or (iii) on the next business day when sent with next-business-day instruction by recognized overnight document delivery service. Such notices shall be sent to Client at the address listed at the beginning of the Agreement and to Company at 1658 Lee Victory Parkway, Suite 3002, Smyrna, TN 37167 Attn: Nathaniel Holzmann. Either party may change its address for purposes of notice by written notice thereof to the other party.
- Survival. Each party covenants and agrees that the provisions set forth in Sections 4,6,8,11-13, and any other provision that, by its nature, is intended to survive this Agreement shall survive any termination or expiration of this Agreement.
- Non-Solicitation. Client shall not, during and for a 1 year after the termination or expiration of the Agreement, by either party and regardless of reason, hire or attempt to hire, directly or indirectly, any person who, during the previous 12 months, was an employee, independent contractor or subcontractor or Company. If Customer breaches this Section 14(c), Customer shall pay Company liquidated damages in an amount equal to 100% of the individual’s gross annual compensation (including salary and guaranteed bonus). The preceding liquidated damages remedy is in additional to, and not in lieu of, any other remedy that Company may have in law or in equity.
- Force Majeure. “Force Majeure Event” means any act or event that (a) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
- Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the state of Tennessee (other than its conflicts of law provisions) and venue shall be exclusively in the federal or state courts sitting in Nashville, Tennessee.
- Jury Trial Waiver. THE PARTIES SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT OF OR CONNECTED IN ANY WAY TO THIS AGREEMENT, BECAUSE THE PARTIES HERETO, BOTH OF WHICH ARE REPRESENTED BY COUNSEL, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALINGS WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
- Assignment. Company may not assign any of its rights under this Agreement, except with prior written consent of Client. Any purported transfer or assignment by a party of any right under this Agreement otherwise than in accordance with the provisions of this paragraph shall be null and void and a breach of this Agreement.
- Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns permitted by this Agreement.
- No Third Party Beneficiaries. Nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever.
- Case Studies. Client agrees that Company may prepare one or more case studies discussing certain services provided by Company to Client hereunder, provided that in no event will any such case study disclose any Confidential Information of Client. Client may opt out of inclusion in a case study by providing written notice to Company.
- Entire Agreement. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the parties with reference thereto will be of any force or effect. Each party represents and warrants that, in entering into and performing its obligations under this Agreement, it does not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of the other party with respect to the subject matter hereof, nor on any course of dealing or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein.
- Amendment and Waiver. No modification or amendment to this Agreement will be valid or binding unless in writing and duly executed by the party or parties to be bound thereby. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right of such party to require performance of that provision. Any waiver by either party of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
- Severability. If any provision of this Agreement is ruled wholly or partly invalid or unenforceable by a court or other body of competent jurisdiction, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court or other body making the ruling; (iii) the provision held wholly or partly invalid or unenforceable shall be deemed amended, and the court or other body is authorized to reform the provision, to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling or the controlling principle of law or equity leading to the ruling subsequently is overruled, modified, or amended by legislative, judicial, or administrative action, then the provision in question as originally set forth in this Agreement shall be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
- Attorney Fees. If litigation or other action is commenced between the parties concerning any dispute arising out of or relating to this Agreement, the prevailing party will be entitled, in addition to any other award that may be made, to recover all court costs and other official costs and all reasonable expenses associated with the litigation or other action, including without limitation reasonable attorney fees and expenses of counsel.
- Injunctive Relief. Each party acknowledges that any violation of its covenants in this Agreement relating to the other party’s Confidential Information and intellectual property would result in damage to such party that is largely intangible but nonetheless real and that is incapable of complete remedy by an award of damages. Accordingly, any such violation shall give such party the right to a court-ordered injunction or other appropriate order to enforce specifically those covenants.
- Headings. The headings of the sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
- Counterparts. This Agreement may be executed in separate counterparts, each of which so executed and delivered shall constitute an original, but all such counterparts constitute one and the same instrument. Manually-executed counterparts may be delivered in faxed or scanned electronic form, each of which (whether originally executed or such a faxed or scanned electronic document) shall be deemed an original, and all of which together shall constitute one and the same instrument. In making proof of this Agreement, it shall not be necessary to produce or account for more than one counterpart hereof signed by each of the parties.
Company and Client have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.