MASTER SERVICES AGREEMENT, AVAIL7394
Prepared for CLIENT
November 2022
Version 1
Non-disclosure statement.
Notices: © 2022 COMPANY A. All Rights Reserved. This document and its contents are the confidential
and proprietary intellectual property of COMPANY A and may not be duplicated, redistributed, or
displayed to any third party without the express written consent of COMPANY A.
Other product and company names mentioned herein may be the trademarks of their respective
owners.
MASTER AGREEMENT (“MASTER AGREEMENT”) between COMPANY (“COMPANY A”), and Client
(“CLIENT”).
COMPANY A and the CLIENT hereby agree as follows:
1. Deliverables.
(a) General. COMPANY A, itself and through its Affiliates (as defined herein), agrees to provide to
CLIENT, and the CLIENT agrees to obtain from COMPANY A, the services (“SERVICES”) and products
(“PRODUCTS”) (collectively, “DELIVERABLES”) described in the attached Schedules, subject to the terms
set forth in this Agreement and in the applicable Schedule. “AFFILIATE” means an entity that controls, is
controlled by, or is under common control with a party, where “control” means the direct or indirect
ownership of more than 50% of the voting securities of such entity or party. Each Schedule will be
deemed to incorporate all the terms of this Agreement. Use of the term “Schedule” throughout this
Agreement shall include any exhibits attached to such Schedule.
(b) Additional Entities and Deliverables. The parties or their Affiliates may add Deliverables to this
Agreement by signing an appropriate new Schedule to this Agreement incorporating the added
Deliverables and/or Affiliates, as applicable. When Deliverables are received by a CLIENT Affiliate or
provided by a COMPANY A Affiliate under a Schedule, then for the purposes of that Schedule, references
to “CLIENT” or “COMPANY A” in this Agreement will be deemed to include the applicable CLIENT
Affiliate or COMPANY A Affiliate. An Affiliate’s execution of an amendment to receive or provide
Deliverables hereunder shall constitute such Affiliate’s agreement to be bound by the terms of this
Agreement.
(c) Alteration of Services; Change Orders. CLIENT requests to alter, modify, augment, or otherwise
deviate from the scope of work set forth in a Schedule (“ADDITIONAL WORK”) will be performed on a
time and materials basis unless the parties initiate the change order process set forth herein. Additional
Work shall be deemed accepted as performed. To initiate the change order process, either party shall
submit details of the requested change to the other in writing. COMPANY A shall, within a reasonable
time after such request (and, if such request is initiated by CLIENT, not more than five (5) business days
after receipt of CLIENT’s written request), provide a written estimate to CLIENT of: (i) the likely time
required to implement the change; (ii) any necessary variations to the fees and other charges for the
Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other
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impact the change might have on the performance of this Agreement. Promptly after receipt of the
written estimate, the parties shall negotiate and agree in writing on the terms of such change (a
“Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in
writing in accordance with Section 9(b).
(d) Acceptance of Deliverables. Deliverables identified in a particular Schedule shall be deemed accepted
upon the earlier of: (i) COMPANY A’s receipt of a project completion and acceptance document which
has been signed and dated by an authorized representative of CLIENT, or (ii) ten (10) calendar days from
the date of delivery of the final Deliverable specified in the applicable Schedule. If acceptance is refused,
CLIENT shall provide written notice to COMPANY A of its reasonable basis for refusal prior to the
expiration of the ten (10) day acceptance period and COMPANY A shall attempt to address the issue
within a reasonable period of time, after which period, COMPANY A shall re-initiate the acceptance
confirmation procedure set forth herein. If the acceptance is refused a second time, the parties shall
engage in the dispute resolution process set forth in Section 8.
2. Fees for Deliverables.
(a) General. CLIENT agrees to pay COMPANY A (i) fees for Deliverables as specified in the Schedules, (ii)
out- of- pocket and other additional charges pursuant to Section 2(b), and (iii) Taxes as defined in
Section 2(c). Fees may be increased as set forth in the Schedules.
(b) Additional Charges. CLIENT shall pay travel and GSA Per Diem Rates for living expenses and other
out- of-pocket expenses reasonably incurred by COMPANY A in connection with the Deliverables. As
applicable, such out-of-pocket expenses shall be incurred in accordance with COMPANY A’s then-current
corporate travel and expense policy. If an out-of-pocket expense is listed in a Schedule, such expense
may be changed to reflect changes issued by the applicable vendor.
(c) Taxes. CLIENT is responsible for the payment of all sales, use, excise, value added, withholdings, and
other taxes and duties however designated that are levied by any taxing authority relating to the
Deliverables (“Taxes”). All Fees and other charges under any Schedule are exclusive of Taxes. CLIENT
shall reimburse COMPANY A for those Taxes that COMPANY A is required to remit on behalf of CLIENT.
In no event shall Taxes include taxes based on COMPANY A’s income.
(d) Payment Terms. Invoices are due and payable upon CLIENT’s receipt of such invoice. The price
included reflects a 3% discount for payment by cash, check or wire transfer. This discount will not apply
in the event that the CLIENT pays using a credit or debit card. If any invoiced amounts remain unpaid 30
days after CLIENT’s receipt of invoice, CLIENT shall pay a monthly late charge based on the unpaid
amounts equal to 1.0% per month (12% per annum) until such invoice amount is paid in full. CLIENT shall
neither make nor assert any right of deduction or set-off from amounts invoiced. In addition to all other
remedies available under this Agreement or at law (which COMPANY A does not waive by the exercise
of any rights hereunder), COMPANY A shall be entitled to suspend the provision of any Services if CLIENT
fails to pay any undisputed fees when due hereunder and such failure continues for 30 days after
CLIENT’s receipt of invoice.
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3. Confidentiality and Ownership.
The provisions of this Section 3 survive any termination or expiration of this Agreement.
(a) Definitions.
(i) “CLIENT Information” means the following types of information of CLIENT and its Affiliates obtained
or accessed by COMPANY A from or on behalf of CLIENT or its Affiliates in connection with this
Agreement or any discussions between the parties regarding new services or products to be added to
this Agreement: (A) trade secrets and proprietary information; (B) customer lists, business plans,
information security plans, business continuity plans, and proprietary software programs; and (C) any
other information received from or on behalf of CLIENT or its Affiliates that COMPANY A could
reasonably be expected to know is confidential.
(ii) “COMPANY A Information” means the following types of information of COMPANY A and its Affiliates
obtained or accessed by CLIENT from or on behalf of COMPANY A or its Affiliates in connection with this
Agreement or any discussions between the parties regarding new services or products to be added to
this Agreement: (A) trade secrets and proprietary information (including that of any COMPANY A
CLIENT, vendor, or licensor); (B) CLIENT lists, information security plans, business continuity plans, all
information and documentation regarding the Deliverables, and the terms and conditions of this
Agreement; and (C) any other information and data received from or on behalf of COMPANY A or its
Affiliates that CLIENT could reasonably be expected to know is confidential.
(iii) “Information” means CLIENT Information and/or COMPANY A Information, as applicable. No
obligation of confidentiality applies to any Information that: (A) the receiving entity (“Recipient”) already
possesses without obligation of confidentiality, develops independently without reference to
Information of the disclosing entity (“Discloser”), or rightfully receives without obligation of
confidentiality from a third party; or (B) is or becomes publicly available without Recipient’s breach of
this Agreement.
(b) Obligations. Recipient agrees to hold as confidential all Information it receives from the Discloser. All
Information shall remain the property of Discloser or its suppliers and licensors. Recipient will use the
same care and discretion to avoid disclosure of Information as it uses with its own similar information
that it does not wish disclosed, but in no event less than a reasonable standard of care and no less than
is required by law. Recipient may only use Information for the lawful purposes contemplated by this
Agreement, including in the case of COMPANY A use of CLIENT Information for fulfilling its obligations
under this Agreement performing, improving, and enhancing the Deliverables, and developing data
analytics models to produce analytics-based offerings. Recipient may disclose Information to: (i) its
employees and employees of permitted subcontractors and Affiliates who have a need to know; (ii) its
attorneys and accountants as necessary in the ordinary course of its business; and (iii) any other party
with Discloser’s prior written consent. Before disclosure to any of the above parties, Recipient will have
a written agreement with (or in the case of clause (ii) a professional obligation of confidentiality from)
such party sufficient to require that party to treat Information in accordance with the requirements of
this Agreement, and Recipient will remain responsible for any breach of this Section 3 by any of the
above parties. COMPANY A as Recipient may also disclose CLIENT Information to third party vendors
designated by CLIENT. Recipient may disclose Information to the extent required by law or legal process,
provided that (A) Recipient gives Discloser prompt notice, if legally permissible, so that Discloser may
seek a protective order, (B) Recipient reasonably cooperates with Discloser (at Discloser’s expense) in
seeking such protective order, and(C) all Information shall remain subject to the terms of this
Agreement in the event of such disclosure. At Recipient’s option, Information will be returned to
Discloser or destroyed (except as may be contained in back-up files created in the ordinary course of
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business that are recycled in the ordinary course of business over an approximate 30- to 90-day period
or such longer period as required by applicable law) at the termination or expiration of this Agreement
or the applicable Schedule and, upon Discloser’s request, Recipient will certify to Discloser in writing
that it has complied with the requirements of this sentence. Recipient acknowledges that any breach of
this Section 3 may cause irreparable harm to Discloser for which monetary damages alone may be
insufficient, and Recipient therefore acknowledges that Discloser shall have the right to seek injunctive
or other equitable relief against such breach or threatened breach, in addition to all other remedies
available to it at law or otherwise.
(c) Ownership. CLIENT acknowledges that COMPANY A, its Affiliates, vendors, and/or its licensors retain
all patents, trademarks and copyrights in and to all proprietary data, processes and programs, if any,
provided in connection with Deliverables. Any Products provided to CLIENT as part of the Services
provided shall be subject to the vendor’s, licensors or OEM’s copyright and licensing policy. To the
extent software incorporated into the Deliverables is created by COMPANY A, CLIENT is granted a non-
transferable, non-exclusive license for CLIENT’s internal use only, subject strictly to the terms and
conditions of this Agreement and shall terminate upon termination or expiration of this Agreement.
CLIENT shall not duplicate, use or disclose for the benefit of third parties, reverse engineer or decompile
any such software Products.
Restrictions. Without limiting any other obligation set forth in this Section 3, CLIENT shall not use,
transfer, distribute, interface, integrate, or dispose of any information or content contained in
Deliverables in any manner that competes with the business of COMPANY A. Except as expressly
authorized in a Schedule, CLIENT shall not: (i) use the Deliverables to provide services to third parties; or
(ii) reproduce, republish or offer any part of the Deliverables (or compilations based on any part of the
Deliverables) for sale or distribution in any form, over or through any medium.
4. Information Security.
As applicable to the Deliverables received by CLIENT, CLIENT agrees to comply with COMPANY A’s then-
current data privacy policies and controls regarding transmission to and from COMPANY A of images and
records maintained and produced by COMPANY A for CLIENT in connection with the Deliverables
(“CLIENT Files”), or other data transmitted to and from COMPANY A in connection with the Deliverables
(collectively with CLIENT Files, “Data”). If CLIENT requests or requires COMPANY A to send, transmit, or
otherwise deliver Data to CLIENT or any third party in a non-compliant format or manner, or CLIENT (or
third party on CLIENT’s behalf) sends, transmits or otherwise delivers Data to COMPANY A in a non-
compliant format or manner, then, notwithstanding any other provision of this Agreement: (i) CLIENT
understands and accepts all risk of transmitting Data in an unencrypted or otherwise noncompliant
format; and (ii) CLIENT releases, discharges, and shall indemnify and hold harmless COMPANY A and its
employees, officers, directors, agents, and Affiliates from any and all liability, damage, or other loss
under this Agreement or otherwise suffered by or through CLIENT or suffered by any of the indemnified
entities arising out of the transmission, destruction, or loss of such Data, including without limitation any
information security or privacy breach related to such Data.
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5. Warranties.
(a) By COMPANY A. COMPANY A warrants that: (i) no contractual obligations exist that would prevent
COMPANY A from entering into this Agreement; (ii) it has the requisite authority to execute, deliver, and
perform its obligations under this Agreement; and (iii) the Service provided by COMPANY A shall be
provided by competent personnel in accordance with applicable professional standards.
(b) THE WARRANTIES STATED ABOVE AND, IN THE SCHEDULES, IF ANY, ARE LIMITED WARRANTIES AND
ARE THE ONLY WARRANTIES MADE BY COMPANY A. COMPANY A DOES NOT REPRESENT THAT THE
DELIVERABLES MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE DELIVERABLES WILL BE
UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES THAT IT HAS INDEPENDENTLY EVALUATED
THE DELIVERABLES AND THEIR APPLICATION TO CLIENT’S NEEDS. COMPANY A DISCLAIMS, AND CLIENT
HEREBY EXPRESSLY WAIVES, ALL OTHER REPRESENTATIONS, CONDITIONS, OR WARRANTIES, EXPRESS
AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, AND ANY ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE. IN
ADDITION, TO THE EXTENT THAT COMPANY A PROVIDES SERVICES IN CONCERT WITH THIRD PARTY
SOFTWARE OR SERVICE SOLUTIONS PROVIDERS, SUCH THIRD PARTY SOFTWARE OR SERVICE SOLUTIONS
ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EVEN IF COMPANY A RECOMMENDED SUCH
SOFTWARE OR SERVICE SOLUTIONS. SUCH THIRD PARTY MANUFACTURERS, SUPPLIERS, OR VENDORS
MAY PROVIDE THEIR OWN WARRANTIES, AND COMPANY A AGREES TO INFORM CLIENT, UPON
REQUEST (1) THE MANUFACTURER OR SUPPLIER WHO IS RESPONSIBLE FOR WARRANTY (IF ANY)
RELATING THERETO, AND (2) THE PROCEDURE TO OBTAIN ANY WARRANTY SERVICE THEREON, IF
KNOWN BY COMPANY A.
(c) CLIENT shall notify COMPANY A in writing within thirty (30) days after completion of the Services
when any of the Services fail to conform to the standard of care set forth in this Agreement. The passage
of the thirty (30) day period after completion of the services without the notification described herein
shall constitute CLIENT’s final acceptance of the Services. Additional work at this time will be quoted and
charge for separately as a change request
6. Limitation of Liability.
IN NO EVENT SHALL COMPANY A BE LIABLE FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR TORT DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT, CONTRACT,
OR OTHERWISE. EXCEPT FOR CLAIMS RELATED TO PROPRIETARY RIGHTS OR PAYMENT OBLIGATIONS,
NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST THE OTHER RELATED TO THIS AGREEMENT MORE
THAN 2 YEARS AFTER SUCH CLAIM ACCRUED. COMPANY A’S AGGREGATE LIABILITY TO CLIENT AND ANY
THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE
LIMITED TO THE TOTAL FEES PAID BY CLIENT TO COMPANY A UNDER THE SCHEDULE RESULTING IN
SUCH LIABILITY IN THE 2 MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED.
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7. Term and Termination.
(a) Term. This Agreement shall be effective on the Effective Date and shall remain in effect until the
term of all outstanding Schedules has expired or such Schedules have terminated, unless otherwise
terminated as provided herein. The term for Deliverables may be set forth in the applicable Schedule. A
Schedule that does not state a term will be effective from its last date of execution until terminated in
accordance with this Agreement or the Schedule.
(b) Termination. In addition to termination rights set forth in any Schedule:
(i) Either party may, upon written notice to the other, terminate: (A) any Schedule if the other party
materially breaches its obligations under that Schedule or under this Agreement with respect to that
Schedule; or (B) this Agreement if the other party materially breaches its obligations with respect to the
non-breaching party’s Information or other intellectual property; and the breaching party fails to cure
such material breach within 30 days following its receipt of written notice stating, with particularity and
in reasonable detail, the nature of the claimed breach.
(ii) If any invoice remains unpaid by CLIENT for more than 30 days after due, COMPANY A may, upon 30
days’ written notice to CLIENT, terminate: (A) the Schedule and/or CLIENT’s access to and use of
Deliverables to which the payment failure relates; or (B) this Agreement if the unpaid amounts
constitute a material portion of annual charges due under this Agreement.
(c) Remedies. Remedies contained in this Section 7 are cumulative and are in addition to the other rights
and remedies available to COMPANY A under this Agreement, by law or otherwise.
8. Dispute Resolution.
Before initiating legal action against the other party relating to a dispute herein, the parties agree to
work in good faith to resolve disputes and claims arising out of this Agreement. To this end, either party
may request that each party designate an officer or other management employee with authority to bind
such party to meet to resolve the dispute or claim. If the dispute is not resolved within 30 days of the
commencement of informal efforts under this paragraph, either party may pursue formal legal action.
This paragraph will not apply if expiration of the applicable time for bringing an action is imminent and
will not prohibit a party from pursuing injunctive or other equitable relief to which it may be entitled.
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9. General.
(a) Binding Agreement; Assignment. This Agreement is binding upon the parties, their participating
Affiliates, and their respective successors and permitted assigns. Neither this Agreement nor any part
thereof or interest therein may be sold, assigned, transferred, pledged, or otherwise disposed of by
CLIENT, whether pursuant to change of control, by operation of law or otherwise, without COMPANY A’s
prior written consent. CLIENT agrees that COMPANY A may assign all or part of this Agreement and may
subcontract any obligations to be performed hereunder; provided that any such subcontractors shall be
required to comply with all applicable terms and conditions of this Agreement, and COMPANY A shall
remain primarily liable for the performance of any such subcontractors.
(b) Entire Agreement: Amendments. This Agreement, including its Schedules, which are expressly
incorporated herein by reference, constitutes the complete and exclusive statement of the agreement
between the parties as to the subject matter hereof and supersedes all previous agreements with
respect thereto and the terms of all existing or future purchase orders and acknowledgments. Each
party hereby acknowledges that it has not been induced to enter into this Agreement by virtue of, and is
not relying on, any representation made by the other party not embodied herein, any term sheets or
other correspondence preceding the execution of this Agreement, or any prior course of dealing
between the parties, including without limitation any statements concerning product or service usage or
the financial condition of the parties. The protections of this Agreement shall apply to actions of the
parties performed in preparation for and anticipation of the execution of this Agreement. Modifications
of this Agreement must be in writing and signed by duly authorized representatives of the parties. If the
terms of any Schedule conflict with the terms of this Agreement, this Agreement shall control unless the
applicable Schedule expressly states that its terms control. If the terms of any Schedule conflict with the
terms of this Agreement to which such Schedule is attached, the terms of this Agreement shall control.
(c) Severability. If any provision of this Agreement is held to be unenforceable or invalid, the other
provisions shall continue in full force and effect.
(d) Governing Law; This Agreement will be governed by the substantive laws of the Ontario, Canada,
without reference to provisions relating to conflict of laws. The United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement. Any dispute relating directly or
indirectly to this Agreement or any other contract or agreement between the parties which cannot be
resolved through the process of consultation and negotiation shall be brought in a court of competent
jurisdiction in the province of Ontario, that being the exclusive venue for any dispute between or any
claims held by any of the parties to this Agreement.
(e) Force Majeure. With the exception of CLIENT’s payment obligations, neither party shall be
responsible for delays or failures in performance resulting from acts of God, acts of civil or military
authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or
Internet service interruptions, or other acts or causes reasonably beyond the control of that party. The
party experiencing the force majeure event agrees to give the other party notice promptly following the
occurrence of a force majeure event, and to use diligent efforts to re-commence performance as
promptly as commercially practicable.
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(f) Notices. Any written notice required or permitted to be given hereunder shall be given by: (i)
registered or certified mail, return receipt requested, postage prepaid; (ii) confirmed email; or (iii)
nationally recognized overnight courier service to the other party at the addresses listed on page 1 or to
such other address or person as a party may designate in writing. All such notices shall be effective upon
receipt.
(g) No Waiver. The failure of either party to insist on strict performance of any of the provisions
hereunder shall not be construed as the waiver of any subsequent default of a similar nature.
(h) Survival. All rights and obligations of the parties under this Agreement that, by their nature, do not
terminate with the expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.
(i) Recruitment of Employees. CLIENT shall not, without COMPANY A’s prior written consent, directly or
indirectly, solicit for employment or hire any Restricted Employee (as defined herein) while such person
is employed by COMPANY A and for the 12-month period starting on the earlier of: (i) termination of
such Restricted Employee’s employment with COMPANY A, or (ii) termination or expiration of this
Agreement. “Restricted Employee” means any former or current employee of COMPANY A or its
Affiliates that CLIENT became aware of or came into contact with during COMPANY A’s performance of
its obligations under this Agreement. If CLIENT breaches Section 9(j), CLIENT shall, on demand, pay to
COMPANY A a sum equal to one (1) year’s basic salary or the annual fee that was payable by COMPANY
A to that employee, worker or independent contractor plus the recruitment costs incurred by COMPANY
A in replacing such person.
(j) Publicity. CLIENT and COMPANY A shall have the right to make general references about each other
and the type of Deliverables being provided hereunder to third parties, such as auditors, advisors and
prospective customers and CLIENTs, provided that in so doing CLIENT or COMPANY A does not breach
Section 3 of this Agreement. COMPANY A may issue a press release regarding this Agreement, including
its renewal and the addition of Deliverables, subject to CLIENT’s review and approval, which shall not be
unreasonably withheld or unduly delayed. Except as authorized herein, CLIENT will not use the name,
trademark, service mark, logo or other identifying marks of COMPANY A or any of its Affiliates in any
sales, marketing, or publicity activities, materials, or website display without the prior written consent of
COMPANY A.
(k) Independent Contractors. CLIENT and COMPANY A expressly agree they are acting as independent
contractors and under no circumstances shall any of the employees of one party be deemed the
employees of the other for any purpose. Except as expressly authorized herein or in the Schedules, this
Agreement shall not be construed as authority for either party to act for the other party in any agency or
other capacity, or to make commitments of any kind for the account of or on behalf of the other.
(l) No Third-Party Beneficiaries. Except as expressly set forth in any Schedule hereto, no third party shall
be deemed to be an intended or unintended third-party beneficiary of this Agreement.
(m) Counterparts. This Agreement and any Schedules hereto may be executed in counterparts, each of
which shall be deemed an original and which shall together constitute one instrument. Signatures
transmitted by facsimile or electronically via PDF or similar file delivery method shall have the same
effect as an original signature.
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10. Signature.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
For COMPANY A
Name:
Signature:
Date:
For CLIENT
Name:
Signature:
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