Proprietary & Confidential

MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”) is entered once SOW has been signed (“Effective Date”) by and between Carve Digital, LLC (“Carve”), and (“Company”).

 

 

  1. Services and Statement of Works: Carve shall provide consulting services (the “Services”) to Company by providing deliverables on a per project basis. All services and deliverables of each project shall be outlined in one or more Statements of Work (each a “SOW”). Each SOW shall specify a set of deliverables (“Deliverables”), projected completion date(s) and milestone(s) and associated payment due date(s). The terms in the SOW shall take precedence over any conflicting terms with this Agreement. Unless otherwise stated in a SOW, Carve shall provide, at its own expense, all software, equipment and tools required to complete the SOW. Each SOW shall become binding when signed by both parties and governed by the terms and conditions of this Agreement. Carve may subcontract the provision of some or all of the Services under this Agreement.
  2. Project Manager: In each SOW, each party shall designate a responsible employee with reasonable decision-making authority to be the project manager (“Project Manager”). Thereafter, Carve’s Project Manager shall consult with the Company’s Project Manager and such other personnel as designated by the Company’s Project Manager in order to facilitate the fulfillment of the parties’ obligations under the applicable SOW.
  3. Acceptance and Rejection:
    1. Acceptance Period: Unless an SOW states otherwise, once a Deliverable is tested and completed by Carve per the applicable SOW, Carve will deliver such Deliverable to Company. Upon receipt of such Deliverable, Company shall have five (5) business days (“Acceptance Period”) to either accept or reject the Deliverable for substantial conformance to the agreed-upon specifications, standards or architectures outlined in the applicable SOW or promptly notify Carve of any defects (“Defect”). If the Company does not notify Carve of any Defects within the Acceptance Period, such Deliverable shall be deemed accepted. If the Deliverable forms the basis for ongoing work, Carve may suspend its performance of such other ongoing work pending acceptance of a Deliverable.
    2. Rejection Procedure: If the Company rejects a Deliverable, Company shall explain in detail the reason for its rejection, in writing, within the Acceptance Period. Deliverables rejected by Company shall be replaced or revised by Carve and presented to Company for subsequent acceptance within a reasonable period of time. The procedures outlined in this Section 3 shall be repeated until the Deliverable is accepted by Company. The date on which the Deliverable is accepted shall be the “Acceptance Date” for such Deliverable.
  4. Payment and Expenses:
    1. Fees: Company agrees to pay Carve the fees set forth in the applicable SOW for Services rendered.
    2. Payment Term: Unless a SOW states otherwise, Carve will invoice Company (at the address listed below) on a monthly basis and payment terms will be net fifteen (15) days from Carve’s invoice date. Any invoiced amount not paid when due shall be subject to a service charge at the lower of the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law. Company shall reimburse Carve for any expense that it may incur in the collection of all amounts due hereunder, including attorney fees and court costs. If Company fails to make any payment to Carve when due (under this Agreement or a separate agreement), Carve may, at its sole discretion and without affecting its rights under this Agreement, cancel or suspend work on any pending SOWs and/or eliminate any stated discount on fees for Services rendered.
    3. Taxes: All payments required under this Agreement are exclusive of any applicable taxes, duties, tariffs, levies and other similar charges, which (excluding Carve’s net income taxes) the Company shall pay when due.
    4. Expenses: Company shall be responsible for reimbursement of Carve’s out of pocket expenses incurred in performing its duties under any SOW, including, but not limited to, expenses for travel and similar items, provided that any expenses in excess of one hundred dollars ($100) per item shall be subject to the prior approval of the Company’s Project Manager. Company will reimburse Carve’s expenses no later than thirty (30) days after Company’s receipt of Carve’s invoice, provided that reimbursement for expenses may be delayed until such time as Carve has furnished reasonable documentation for authorized expenses as Company may reasonably request.
    5. Cancellation: Company may cancel Services with written notice received by Carve at least five (5) business days prior to commencement date of such Service for full refund. If cancellation notice is received within five (5) business days of the commencement date of such Services, then fifty percent (50%) will be refunded to Company. If Company does not provide a cancellation notice prior to commencement date, no refund will be offered.
    6. Change of Commencement Date: Company may request a change in the commencement date of Service by no more than thirty (30) days with written notice received by Carve at least five (5) business days prior to commencement date of such Service with no penalty. If written notice is received within five (5) business days of the commencement date of the Service, then an additional twenty five percent (25%) of the original fee will be charged to Company.
  5. Term and Termination:
    1. Term: Unless terminated as stated herein, this Agreement shall be effective for a period referenced in SOW from the Effective Date (“Term”). The Term shall automatically renew annually unless either party terminates the agreement by giving 30 days notice. In the event of any termination, Company will pay Carve the fees incurred for Services rendered by Carve up to the termination date.
    2. Termination: Either party may terminate this Agreement at any time, for any reason, by providing thirty (30) days written notice to the other party. Either party may terminate this Agreement immediately upon written notice to the other party in the event the other party (i) ceases to do business in the ordinary course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency, which proceeding, if involuntary, is not dismissed within sixty (60) days, (iv) makes an assignment for the benefit of its creditors, or (v) for a material breach of this Agreement and fails to remedy such breach within fifteen (15) days after receipt of written notice of such breach given by the non-breaching party.
    3. Effect of Termination. Upon termination of this Agreement, each party shall return to the other party all Confidential Information, defined below, of the other party in it is possession. The provisions of Sections 4.1- 4.4, 5.3, 7, 8, 9.3, 10-13 shall survive termination of this Agreement.
  6. Independent Contractors: The parties’ relationship is that of independent contractors. Neither party shall be deemed to be the legal representative of the other nor shall it have any right to bind the other party to any contract or commitment. This Agreement does not, and shall not be construed to create an employer-employee, agency, joint venture or partnership relationship between the parties. Each party agrees to assume complete responsibility for its own employees regarding federal or state laws including employers’ liability and tax withholding, worker’s compensation, social security, unemployment insurance, and OSHA requirements.
  7. Confidential Information: Company and Carve agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”) during the Term of this Agreement and for a period of two (2) years after the termination of this Agreement. This section shall not apply to any publicly available or independently developed information or the open source version of the Carve software licensed under the Carve Public License. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care. Each party agrees to notify the other promptly upon discovery of any unauthorized access, disclosure, or use of the Confidential Information. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information and that the other party may seek, without waiving any other rights or remedies and without posting any bond, injunctive or equitable relief.
  8. Retention of Rights:
    1. Company agrees that nothing in this Agreement shall be deemed to prohibit or limit Carve’s use, now or at any time, of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience, in any way whatsoever, that are used or developed in the performance of services under this Agreement or any SOW, except to the extent such use is prohibited by Section 7 (“Confidential Information”). Further, Company agrees that should Carve be performing services on product licensed by Carve or used by Carve to provide services, then Carve retains, and Company hereby assigns, all right, title, and interest in all modifications, enhancements, customizations, source code, acquired or developed during the performance of the services under this Agreement or any SOW. Carve hereby grants to Company a worldwide, non-exclusive, non-transferable, royalty-free licensed right to use all Deliverables for its internal uses. Carve shall have the sole right to use and/or to apply for patents, copyrights or other statutory or common law protections for any Deliverable.
    2. Company may request in certain situations that Carve develop custom code on a “Work For Hire” basis. The terms and rights associated with development of work product on a “Work For Hire” basis shall be documented in the SOW and agreed to in writing by Company and Carve. The degree to which Carve may waive its retention of rights as described in section 8. Above shall be limited to such waivers explicitly agreed to by Carve, and shall only apply to the work specified in the SOW for the “Work For Hire” project.
  9. Warranties:
    1. Performance: Carve represents and warrants that the Services shall be performed in a professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing services of a similar nature under similar circumstances by personnel with requisite skills, qualifications and licenses needed to carry out such work. Company’s sole and exclusive remedy for a breach of this warranty shall be set forth in Section 9.2 below.
    2. Exclusive Remedies: For any breach of the warranty set forth in this Section 9, Company’s sole and exclusive remedy, and Carve’s sole and exclusive obligation, shall be (i) the correction of defective work, within reasonable time, so as to comply with generally accepted industry standards; or (ii) if Carve is unable to perform such Services as warranted, then at Carve’s discretion, Carve may refund all the fees paid to Carve under this Agreement or a SOW for the unsatisfactory Services. Any claim based on the breach of foregoing warranty must be submitted in writing within thirty (30) days from the Acceptance Date.
    3. Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CARVE MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE SERVICES. CARVE SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Carve DOES NOT GUARANTEE THAT THE USE OF ANY DELIVERED SOFTWARE WILL NOT BE INTERRUPTED OR ERROR FREE.
  10. Waiver of Consequential Damages: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  11. Limitation of Liability: TO THE EXTENT PERMITTED BY APPLICABLE LAW, CARVE’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY THE COMPANY UNDER THIS AGREEMENT OR ANY SOW.
  12. Non-Solicitation: Company agrees that, during the Term of this Agreement and for twelve (12) months thereafter, Company will not directly or indirectly solicit, induce or attempt to induce or solicit any Carve employee to leave his/her employment and join Company or any affiliate thereof. If Company violates the terms of this Section, Company will pay to Carve within ten (10) business days following the retention of such person a lump sum fee equal to six (6) months base salary of such employee at the time he/she left Carve.
  13. Governing Law, Jurisdiction and Legal Expenses: This Agreement shall be governed by the laws of the State of Colorado without regards to its conflicts of law provisions. The United Nations convention on International Sale of Goods is excluded in its entirety. Any legal action or proceeding relating to this Agreement shall be instituted exclusively in a state or federal court in the city and county of Denver, Colorado. Each party hereby submits to the personal jurisdiction of such courts. The unsuccessful party in an action at law or in equity to enforce the provisions of this Agreement shall pay all costs and expenses so incurred, including attorneys’ fees.
  14. Notice: All notices and other communications herein provided for shall be sent by postage prepaid, via registered or certified mail or Federal Express, return receipt requested, or delivered personally to the parties at their respective addresses set forth above, or to such other address as either party shall give to the other party in the manner provided herein for giving notice, or by email or facsimile to the signatory below or the Project Manager. Notice by mail or facsimile shall be considered given three (3) days after deposit with the carrier. Notice delivered personally or by e-mail shall be considered given at the time it is delivered or sent electronically.
  15. Force Majeure: Neither party shall be liable or deemed to be in breach for any delay or failure in performance of this Agreement or any SOW (except for the payment of money) or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such party.
  16. Assignment: Company may not assign this Agreement without the prior written consent of Carve.
  17. Severability: If any term or provision of this Agreement or the application thereof to any circumstance will, in any jurisdiction and to any extent, be invalid or unenforceable, such term or provision will be ineffective as to such jurisdiction to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining terms and provisions of this Agreement or the application of such terms and provisions to circumstances other than those as to which it is held invalid or unenforceable, and a suitable and equitable term or provision will be substituted therefore to carry out, insofar as may be valid and enforceable, the intent and purpose of the invalid or unenforceable term or provision.
  18. Entire Agreement; Amendment; Waiver: This Agreement expresses the entire understanding with respect to the subject matter hereof and supersedes and terminates any prior oral or written agreements with respect to the subject matter hereof. Any term of this Agreement may be amended and observance of any term of this Agreement may be waived only with the written consent of the parties hereto. Waiver of any term or condition of this Agreement by any party shall not be construed as a waiver of any subsequent breach or failure of the same term or condition or a waiver of any other term or condition of this Agreement. The failure of any party at any time to require performance by any other party of any provision of this Agreement shall not affect the right of any such party to require future performance of such provision or any other provision of Agreement.
  19. Customer Reference: Carve may identify you as a recipient of services and use your logo in sales presentations, marketing materials, and press releases, and (ii) to develop a brief customer profile for use by Carve on carvedigital.net for promotional purposes.