LEADERALLY, LLC — MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the “Agreement”) is made as of this DATE by and between (“ORGANIZATION NAME”), with an office at ORGANIZATION ADDRESS and Leaderally, LLC (“LEADERALLY”) with an office at 45 South Park Place, #88 , Morristown, NJ 07960.1. Statement of Work. LEADERALLY shall provide ORGANIZATION NAME with certain specific services (the “Services”) and deliverables (“Deliverables”) as agreed to by the parties in a statement of work (the “SOW”) or an appendix to this Agreement. Each time ORGANIZATION NAME requests LEADERALLY to perform Services under this Agreement a SOW or Appendix will be prepared detailing the tasks that LEADERALLY will perform and each party shall sign the SOW in acknowledgement of their agreement with it.
2. Deliverables. Deliverables or Services will be delivered as specified in the relevant SOW or Appendix. If LEADERALLY cannot comply with a delivery commitment, LEADERALLY will promptly notify ORGANIZATION NAME of a revised delivery date and ORGANIZATION NAME may: (1) cancel without charge Deliverables or Services not yet delivered.
3. Ownership. All Deliverables, information, reports, studies, object or source code, flow charts, diagrams, ideas, concepts, inventions and other tangible or intangible material of any nature whatsoever produced by or as a result of any of the Services (including, without limitation, all intellectual property rights relating to the Services) (“Developed Works”) belong exclusively to LEADERALLY. If any Developed Works are not considered works made for hire they will be owned by LEADERALLY by operation of law. ORGANIZATION NAME assigns the ownership of all intellectual property rights in such works to LEADERALLY. This Agreement does not grant either party the right to use the other party’s trademarks, trade names or Service Marks. ORGANIZATION NAME will execute any additional documentation reasonably requested by LEADERALLY to effectuate the foregoing.
4. Fees, Payment and Taxes.
A. Fees. The fees for the Services are as set forth in the SOW or Appendix.
B. Payment. Payment of fees for the Services rendered shall be in United States currency. Except as otherwise expressly provided in the relevant Statement of Work, all invoices are due and payable by ORGANIZATION NAME net fifteen (15 days of receipt of a correct invoice.)
C. Taxes. LEADERALLY shall be responsible for all taxes, tariffs, duties, and other charges, however levied upon the fees paid to it including, without limitation, any national or local value-added, transfer, withholding, sales, use, privilege, excise or gross revenue based taxes.
5. Warranty and Limitations:
A. Warranties. LEADERALLY makes the following ongoing representations and warranties: (1) it has the right to enter into this Agreement and its performance of this Agreement will not violate the terms of any contract, obligation, law, regulation or ordinance to which it is or becomes subject; (ii) no claim, lien, or action exists or is threatened against LEADERALLY that would interfere with ORGANIZATION NAME’s rights under this Agreement; (iii) Deliverables will comply with the warranties, specifications and requirements in this Agreement; (iv) Services will be performed using reasonable care and skill in accordance with the relevant SOW; (v) Deliverables and Services do not infringe any privacy, publicity, reputation or intellectual property right of a third party; and (vi) all authors have agreed not to assert their moral rights (personal rights associated with authorship of a work under applicable law) in the Deliverables, to the extent permitted by law. Except for the foregoing warranties, LEADERALLY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITEED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND NON-INTERFERENCE.
B. Breach of Warranties. If Deliverables or Services do not comply with the warranties in this Agreement, LEADERALLY will repair or replace Deliverables or re-perform Services, without charge and in a timely manner. If LEADERALLY fails to do so, ORGANIZATION NAME may repair or replace Deliverables or re-perform Services and LEADERALLY will reimburse ORGANIZATION NAME for actual and reasonable expenses.
C. Neither party will be liable hereunder for penalties or for special, indirect, consequential or incidental losses or damages, such as damages for lost profits, lost or damaged data, failure to achieve cost savings, loss of use of facility or equipment, or the failure or increased expense of operations, regardless of whether any such losses or damages are characterized as arising from breach of contract, breach of warranty, tort, strict liability or otherwise, even if a party is advised of the possibility of such losses or damages, or if such losses or damages are foreseeable.
D. Neither party’s liability hereunder, regardless of the form of action, shall exceed the total amount paid by ORGANIZATION NAME under the Statement of Work under which the claim arises. LEADERALLY’S liability hereunder, regardless of the form of action, shall not exceed the amounts earned and incurred by LEADERALLY.
E. The provisions of Sections 5(B) and 5(C) shall not limit (a) liability for breach of any confidentiality obligation, (b) liability of either party for infringement of the other party’s intellectual property rights, (c) the indemnity obligations set forth in this Agreement, (d) liability of either party for personal injury or death, or for damage to real property or tangible personal property, to the extent caused by the gross negligence or willful misconduct of such party or its employees.
F. Indemnities. (i) LEADERALLY will defend, hold harmless and indemnify, including attorney’s fees, ORGANIZATION NAME and ORGANIZATION NAME personnel against (a) claims that arise or are alleged to have arisen as a result of willful malicious acts of LEADERALLY or LEADERALLY personnel.
6. Confidentiality. In connection with this Agreement a party may have access to information that is confidential to the other party. “Confidential Information” means all information which a reasonably prudent person under the circumstances would expect to be treated as confidential. LEADERALLY software or logic, architecture and documentation relating thereto; object code; source code; algorithms, programs; and all work or services performed under this Agreement and all derivative work product resulting from such work, including, without limitation, all data; designs, software; programs rules; card checks; tapes; ideas; concepts; techniques; inventions; proprietary rights; modifications; and enhancements, together with all associated Worldwide Intellectual Property Rights (collectively, “Proprietary Information”) shall be considered Confidential Information hereunder. Worldwide Intellectual Property Rights includes, without limitation, any and all patent rights; copyrights; rights in mask works; trade secrets; trademarks; trade dress and all other forms of protection applicable to inventions; conceptions; ornamental designs; works of authorship; algorithms; trade secrets; utility models or other forms of intellectual or industrial property. Recipient agrees to (i) use the same care and discretion to avoid disclosure, publication or dissemination of the discloser’s Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate; (ii) use at least a reasonable standard of care; and (iii) to use the discloser’s Confidential Information only for the purpose for which it was disclosed. Each party agrees to transmit the Confidential Information only to its employees and employees of subsidiaries who have a need to know the Confidential Information for the purposes for which it was disclosed and who shall agree to be bound by terms and conditions at least as protective of the Confidential Information as the terms and conditions of this Agreement. “Confidential Information” does not include information that (a) is or becomes generally available to the public through no fault of the recipient, (b) becomes available to the recipient on a non-confidential basis from a source other than the disclosing party, (c) was known to the recipient or in its possession prior to the date of disclosure by the disclosing party, (d) is furnished by the disclosing party to others without an obligation of confidentiality, or (e) is independently developed by the recipient without reference to the Confidential Information. In the event that the recipient or anyone to whom it transmits the Confidential Information becomes legally compelled to disclose any of the Confidential Information, it will provide the disclosing party with prompt notice so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the disclosing party waives compliance with the provisions of this Agreement, the recipient will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts at the expense of the disclosing party, to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. The confidentiality obligations set forth in this Agreement for Confidential Information will remain in effect for a minimum period of three (3) years from the date of the last disclosure of such Confidential Information; provided that the confidentiality obligations set forth in this Agreement for Proprietary Information will remain in effect in perpetuity.
7. Survival. In the event of termination of this Agreement for any reason, such termination will not relieve any party hereto of its obligation to observe, keep and perform fully all covenants, terms and conditions herein contained on its part to be observed, kept, or performed prior or subsequent to the date of termination, including, without limitation, the provisions of Sections 5 and 6 hereof.
8. Illegality or Unenforceability. If any provision of this Agreement will become or becomes illegal or unenforceable in whole or in part for any reason, the legality or enforceability of the remaining provisions hereof will not in any way be affected or impaired.
9. Assignment. LEADERALLY may assign sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement with the prior written consent of ORGANIZATION NAME. Any assignment in violation of this Agreement is void. Subject to the foregoing, this Agreement is binding upon the successors, legal representatives and permitted assigns of the parties.
10. Waiver. The waiver or modification by any party hereto of any term or condition hereof will not void, waive or modify any other term or condition hereof. The failure of any party to insist, in any one or more instance, upon the performance of this Agreement will not be construed as a waiver or relinquishment of such party’s rights to such performance or to future performance of such term.
11. Notices. All notices and communications hereunder will be in writing and will be personally delivered (including by a reputable national courier) or mailed by first class mail, postage prepaid, to the parties at their respective addresses set forth above, subject to the right of any party to change its address by ten (10) days prior written notice to the other party.
12. Governing Law. This Agreement, and all matters arising under this Agreement will be governed and construed by New Jersey law, excluding its conflict of laws principles. Any legal action or proceeding relating to this Agreement will be instituted in a state or federal court in New Jersey. The parties irrevocably agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal or action or proceeding.
13. Term; Termination, Deliverables and Services acquired by ORGANIZATION NAME on or after the date hereof will be covered by this Agreement. This Agreement will remain in effect until terminated. Either party may terminate this Agreement, without any cancellation charge, for a material breach of the Agreement by the other party or if the other party becomes insolvent or files or has filed against it a petition in bankruptcy (“Cause”), to the extent permitted by law. Such termination will be effective at the end of a thirty (30) day written notice period if the Cause remains uncured. Either party may terminate this Agreement without Cause when there are no outstanding SOWs or Appendixes. LEADERALLY may terminate a SOW or Appendix without or without Cause. In the event ORGANIZATION NAME terminates without Cause, ORGANIZATION NAME will compensate LEADERALLY for the actual and reasonable expenses incurred by LEADERALLY for work in process up to and including the date of termination, provided such expenses do not exceed the prices in the SOW or Appendix.
14. LEADERALLY and LEADERALLY Personnel. LEADERALLY is an independent contractor and this Agreement does not create any agency relationship between ORGANIZATION NAME and LEADERALLY and LEADERALLY or ORGANIZATION NAME and LEADERALLY’s personnel (“LEADERALLY Personnel”). The employees, methods, facilities and equipment of each party will at all times be under the exclusive direction and control of that party. LEADERALLY personnel who render services to ORGANIZATION NAME under this Agreement may render similar services for others during the term of this Agreement. LEADERALLY will make reasonable efforts to honor specific requests of ORGANIZATION NAME regarding assignment of LEADERALLY personnel, but LEADERALLY reserves the right to make and change all personnel assignments provided that any such changes in assignments do not interrupt the continuity of the applicable Statement of Work including but not limited to any delays in meeting any milestones or Deliverables as provided therein. You agree that during the term of this Agreement and for a period of one (1) year thereafter, you shall not, directly or indirectly solicit the employment of or hire any person who is then or has been within twelve (12) months prior thereto, an employee and/or consultant of LEADERALLY or any of its subsidiaries, and/or (b) assist any third party in soliciting the employment of or hiring any person who is then or has been within twelve (12) months prior thereto, an employee and/or consultant of LEADERALLY and/or its subsidiaries.
15. Excused Non-Performance. Neither party shall be liable to the other for any delay in delivery or other failure of performance under this Agreement due to any cause beyond its control, including, but not limited to, act of God or government, labor disputes or inability to secure materials.
16. Entire Agreement. This writing constitutes the final expression of the parties’ agreement and is a complete and exclusive statement of the terms of that agreement and shall not be modified or rescinded, except by a writing signed by each party hereto. No provisions in any purchase orders or invoices between the parties will apply. Neither party has relied on any oral or written statements or representations in entering into this Agreement other than those contained herein.
17. Exhibits. The exhibits referenced herein and attached hereto are made a part of this Agreement as if fully included in the text hereof.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be considered an original hereof but all of which together shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their respective duly authorized representatives.
LEADERALLY LLC ORGANIZATION NAME
By:____________________ By: _________________________
Name: ____________________ Name: ___________________________
Title: _____________________ Title:_____________________________