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This Master Services Agreement (MSA) contains the standard terms and conditions under which Beyond Cloud Consulting Inc. will provide the Deliverables and Services (collectively, “Work Product”) to Client set forth in one or more statements of work accompanying this MSA (each an “SOW”, and collectively together with the MSA, the “Agreement”).
1. Agreement: This Agreement represents the entire agreement between Company and Client with respect to the Work Product to be performed or delivered hereunder, and it supersedes all prior and/or contemporaneous agreements and understandings with respect hereto, whether oral, written, or in any other medium. In the event of any conflict, ambiguity or inconsistency between this Agreement and any other document, including any which may be annexed to this Agreement and any terms and conditions on Client’s purchase orders or other documents, the terms and conditions of this Agreement shall govern. No modification to any provision of this Agreement shall be binding unless in writing and signed by both parties.
2. Confidentiality: Company and Client acknowledge and agree that: (i) any and all non-public information Company may in any way access or receive in connection with Client’s Salesforce account (including, but not limited to, any information regarding Client’s business, sales, clients and/or customers), and any and all non- public information related to Client and/or its business, sales, clients and/or customers, will be deemed Client’s “Confidential Information”; (ii) Company will keep Client’s Confidential Information confidential; (iii) any and all confidential information, ideas or concepts developed by Company in connection with delivery of the Work Product, including the pricing and other terms of this Agreement, will be deemed Company’s “Confidential Information”; (iv) Client will keep Company’s Confidential Information confidential; (v) Company will permit its own employees and agents (“Representatives”) to access Client’s Confidential Information only on a confidential, need-to-know basis; and (vi) both parties’ obligations provided in this paragraph will survive any termination of this Agreement. “Confidential Information” will not include any information that a party can demonstrate: (a) is publicly available through no act or breach by that party or any of its Representatives; (b) was previously in its possession before receiving the information from the other party under this Agreement; (c) was disclosed to it by a third party free to disclose such information without breaching an obligation to either party to this Agreement; or (d) it developed independently without use of or reliance on the other party’s Confidential Information. An recipient of another party’s Confidential Information hereunder agrees: (1) not to utilize, except as required to perform any obligation under this Agreement, any such Confidential Information (or any portion thereof); (2) to ensure that its Representatives shall only be given access to such Confidential Information to the extent necessary for such Representatives to perform their duties under this Agreement; and (3) to ensure that any of its Representatives who receive access to such Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing, or disclosing such Confidential Information, except as required to perform any obligations under this Agreement. The recipient of Confidential Information hereunder acknowledges that its breach of this Section 2 may cause the disclosing party irreparable injury for which monetary damages may not make the disclosing party whole. Accordingly, in addition to all other available remedies at law or in equity, the disclosing party will be entitled to seek equitable or injunctive relief as and where it deems fit in the event of an actual breach of any obligation of the recipient or its Representatives under this Section 2. If the recipient is requested to disclose any of the Confidential Information pursuant to any judicial or governmental order, such recipient may not disclose the Confidential Information without first giving the disclosing party written notice of the request (if legally permissible) and sufficient opportunity to contest that order or obtain a protective order (at the disclosing party’s sole expense). It is further agreed that, if in the absence of a protective order the recipient is nonetheless compelled to disclose such Confidential Information, the recipient may disclose such Confidential Information without liability hereunder.
3. Non-Solicit: During the term of this Agreement and for 12 months following the termination of this Agreement, Client and its affiliates will not, whether directly or indirectly, (a) hire, solicit to hire, engage, or solicit to engage, whether as an employee, independent contractor, consultant or otherwise, any person who has been an employee, independent contractor, consultant or service provider of the Company or any of its subsidiaries at any time during the preceding twelve months (each a “Restricted Person”), (b) persuade any Restricted Person to leave his or her employment or engagement with the Company or any of its subsidiaries, or (c) otherwise interfere in any way with the relationship between the Company or any of its subsidiaries, on the one hand, and any Restricted Person, on the other hand. In the event that this Section 3 is violated by Client or any of its affiliates, Client will be legally obliged to pay the Company, as liquidated damages, an amount equal to three times the current annualized salary or fees of the applicable Restricted Person, in addition to any other legal fees and expenses the Company accrues in trying to resolve this issue.
4. Non-Business Day Work: Any Services or other work requested to be performed on non-working days (weekends or holidays) and approved to be performed by Company on such days will be billed at double the project rate.
5. Project Team: The project team will be determined by Company based on Client’s needs and Company’s available human resources. The Company will do its best to staff Client’s project with personnel who are most qualified to service Client’s account. If any of the Company’s personnel are not performing according to Client’s expectations, please notify the Company immediately so that the Company may take appropriate action to resolve Client’s concerns.
6. Estimates: All SOWs, change orders, or any quotes or proposals given by the Company to Client are given purely as estimates. These estimates, if given, are based on our professional judgment, but always with a clear understanding that they are not a binding maximum or fixed fee quotation and are in all respects subordinate to and superseded by the other terms of our engagement. The actual Investment may be higher than our estimate because of the unforeseen changes, events, new requirements, or delays that occur or circumstances that may arise which require us to perform additional Services not originally anticipated or expected. Often, we cannot anticipate the ultimate complexity of the Services at hand, nor the time and labor that will be required of us to handle it properly. The ultimate Investment is frequently more or less than any estimate. The Client is responsible for any Investments that are above and beyond the estimate.
Notwithstanding the foregoing or anything to the contrary in this Agreement, and unless otherwise set forth in any SOW, the Client will not be responsible for additional hours that exceed ten percent (10%) of the total hours set forth in the estimate in such SOW, unless such hours in excess of ten percent (10%) of the total hours set forth in the estimate in such SOW have been approved in a written change order signed by the Client.
7. Managed Services, Expiration of Hours, & Invoices: All hours that are not used by Client expire six months following the last time entry on the project. If Client pays an invoice, then Client assumes that all hours in the invoices are correct and verified. Once an invoice has been paid by Client, Client cannot thereafter dispute such invoice.
8. Development, QA, Data Migration, and Bugs Assumptions: We recommend that Client have a full sandbox in which we can work so that LIVE processes are not adversely affected while updating. Client is responsible for providing all data files in CSV format. All data cleaning will be conducted by Client. If Client wants Company to take care of cleaning or cleansing data, then Company can provide its estimate for any work required to cleanse and clean the data. However, as all data clean up tasks are difficult to estimate prior to seeing the files and working with the data, our estimate will not necessarily reflect our actual fee. Company is not responsible for backing up Client data that is used for development. Client is responsible for all data backups until we complete the project. If custom code is needed for the project, a full dedicated sandbox will be provided to Company. All fixes to code or configuration will be billed to Client on a time and materials basis even if the cause of the bug was Company’s fault. All time related to QA and bug fixes will be billed to Client. The Company does not guarantee any work. If there is Data Migration, then all fixes, bugs, or mistakes related to Data Migration will be billable, even if the mistake is caused by Company. Company is not responsible for deficiencies in any third-party applications, software or companies involved in the project. Company cannot always develop your custom solution without any bugs. Bugs are a normal process of software development. All software is subject to bugs and updates. All debugging is billable. Company’s estimate and deliverables do not take account of any deficiencies/bugs, Client responsiveness, new product features, or the involvement of any third party.
9. Development Assumptions: If custom code is needed for the project, a dedicated sandbox will need to be provided. If development of custom code is part of the project, deployment failures due to existing code are outside of the scope of this SOW and may need a change order for more time to troubleshoot. Client shall provide Company with an administrative username and password for system use in the delivery of services identified in the SOW. Client acknowledges that they understand the capabilities and limitations of the specific edition of the software platform and that this SOW will work within the native functionality available. Reporting and Dashboard configuration will be limited to standard reporting using the software platform’s report wizard. If mobile access will be needed, Client will utilize the native version of the software platform’s Mobile Application. Unless otherwise stated in the SOW, there will be no custom configuration or development done for the mobile application. Unless otherwise stated in the SOW, all systems will be designed, configured and/or developed only for the target desktop google chrome browser, and in no event will the Company guarantee that code, customizations, developments, or configurations will work in any other environment, desktop browser, mobile device or others. Client will be responsible for the User Acceptance planning and testing of the mobile application. Client’s IT team will be responsible for any deployment to user desktops or mobile devices. This includes standard components (page layouts, fields, related lists, custom fields, required/optional, record types, and picklists) to support the functionality outlined in the SOW. Company is not responsible for the limitations and performance of the software platform or any third-party applications or services. Issues can arise that are unexpected in best-case scenarios. There are many reasons known and unknown in which bugs and issues can cause tasks to take longer than expected. We are not liable if we run into unforeseen issues caused by third parties.
10. Third Parties; Disclaimer: Company is not responsible for deficiencies in any third-party applications, software or companies involved in the project. Bugs are a normal process of software development. We cannot always develop your custom solution without any bugs. We generally charge for fixing bugs. Company’s estimate and deliverables do not take account of any deficiencies, bugs, Client responsiveness, new product features, or the involvement of any third party.
11. Limitation of Liability Disclaimer: In no event shall Company or Client be liable for any loss of profit or revenue, or for any other special, exemplary, punitive, consequential, incidental, or indirect damages of any kind or nature arising out of or in connection with this Agreement, whether in an action based on contract, tort, or otherwise, even if a party has been advised of the possibility of such loss or damages. Company is not liable for Client’s performance. Client waives any and all claims against Company for which liability is expressly disclaimed in this paragraph.
12. WARRANTY DISCLAIMER: WITH RESPECT TO ANY WORK PRODUCT, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO CLIENT OF THE PARTICULAR WORK PRODUCT OR FOR CLIENT’S PERFORMANCE THEREAFTER. ALL
EXPRESSED AND IMPLIED WARRANTIES ARE DISCLAIMED. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE WORK PRODUCT FOR ANY PURPOSE. THE WORK PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. COMPANY DOES NOT WARRANT THAT THE WORK PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE. NEITHER COMPANY NOR ITSREPRESENTATIVES WILL BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE BASED ON ANY ERRORS OR OMISSIONS THEREFROM, WHETHER NEGLIGENT OR OTHERWISE, IN DELIVERING THE WORK PRODUCT. IF CLIENT IS NOT IN AGREEMENT WITH COMPANY’S WORK PRODUCT, IT IS CLIENT’S RESPONSIBILITY TO BRING FORTH THE ISSUE(S) FOR IMMEDIATE RESOLUTION BETWEEN CLIENT AND COMPANY WITHIN 30 DAYS OF DELIVERY, OTHERWISE COMPANY WILL INTERPRET CLIENT TO HAVING ACCEPTED THE WORK PRODUCT. COMPANY, WILL AT ALL TIMES USE QUALIFIED PERSONNEL TO PERFORM ALL ACTIVITY REQUIRED HEREUNDER. THE WORK PRODUCT WILL MATERIALLY CONFORM TO CLIENT’S AND COMPANY’S RESPONSIBILITIES OUTLINED IN THE APPLICABLE SOW.
13. Indemnification: Client shall indemnify, defend, and hold harmless the Company, and defend any action brought against the Company with respect to any claim, demand, cause of action, suit or proceeding brought by a third party against the Company to the extent that it is based on or arises out of (i) the fraud, willful misconduct, or intentional misrepresentation of the Client; (ii) any infringement by Client of any intellectual property right of any third party; and/or (iii) any material breaches by the Client of this Agreement or any SOW. Client shall pay all Investments incurred (including reasonable attorneys’ fees and disbursements) and damages awarded against the Company. The Company shall promptly notify Client in writing of any claim, suit, or proceeding for which Client may have obligations under this Section 14; provided, however, that any failure of the Company to provide such notice shall excuse Client only to the extent that Client is materially prejudiced thereby. The Company shall cooperate with Client with regard to the defense of any claim, proceeding, suit, or threatened suit. Client shall have full control of any such claim, proceeding, or suit, and the authority to settle or otherwise dispose of any suit or threatened suit. In no event, however, shall Client agree to any settlement of any claim, suit, or proceeding for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability or obligation upon the Company, without the Company’s prior written consent.
14. Limitation of Remedies: Client’s sole and exclusive remedy for any claim against Company with respect to the quality of the Work Product will be for the Company to correct the Work Product so that such Work Product is free of any material defects or deficiencies therein. Client is responsible for all data backups until
Company completes the project. THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES, AGENTS AND LICENSORS FOR ANY REASON WHATSOEVER RELATED TO THE WORK PRODUCT AND THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE OF THE FEES PAID BY CLIENT HEREUNDER, AND CLIENT AGREES NOT TO SUE FOR A GREATER AMOUNT. CLIENT RELEASES AND DISCHARGES SUCH PARTIES FROM ALL LIABILITY IN EXCESS OF SUCH AMOUNT, INCLUDING LIABILITY FOR ITS OR THEIR NEGLIGENCE.
15. Intellectual Property (IP): Company owns all IP and Work Product created in accordance with thismAgreement and Company grants a perpetual, non-transferable, non-sub licensable license to use and exploit the Work Product, in accordance with the SOWs, provided that Client has paid to the Company all amounts due hereunder. Client will own all data and have access to all source code as applicable to each project. Nothing stated in, or implied from, this Agreement gives Client any license under any copyright, trademark, trade secret, or other intellectual property of Company or any third party. Client retains sole and exclusive ownership of all rights, title, and interest (including but not limited to all intellectual property rights) in and to its website, products, services, and all material originating from Client under this Agreement.
16. Termination: The Client has the right to terminate the engagement at any time with notice to the Company. In the event of such termination Beyond Cloud Consulting Inc. will be owed for all hours consumed up until the point of termination.
17. Deadlines; Force Majeure: Company acknowledges that any deadlines set forth in an SOW are important, and Company will make reasonable efforts to meet such deadlines. Failure to produce a Work Product by a particular deadline shall not be grounds for cancelation of this Agreement or any SOW. Neither party will be liable to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay that is caused by or results from acts beyond the affected party’s reasonable control, including (a) acts of God; (b) flood, fire or explosion; (c) national or regional emergency; (d) strikes, labor stoppages or slowdowns or other industrial disturbances; (e) disruptions in power, telecommunications or internet or damage to computer equipment; or(f) any other issue or event which is beyond the reasonable control of either party (each, a “Force Majeure Event”). A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The non-affected party may terminate this Agreement if such failure or delay continues for a period of 15 days or more.
18. Publicity: Upon Client approval, Company may use Client’s name and logo on Company website and promotional materials in an accurate and reasonable manner to identify Client as a current or former client of Company.
19. Travel & Expenses: Travel to Client’s site will be billed on a time & materials basis. All expenses related to travel will be billed to Client. In the event the Company needs to rent a car for travel to Client’s site, the car will be full-size. If the Company needs one or more hotel rooms, a 3.5 star hotel or above will be booked. If the Company needs one or more flights, a coach class ticket will be purchased. In general, the earlier any travel is booked by the Company the better the rate.
20. Dispute Resolution: In the event that a dispute arises between the parties regarding the performance of this Agreement, the parties shall attempt in good faith to resolve any dispute arising out of or in connection to this Agreement pursuant to this Agreement. Client agrees to pay any and all outstanding and undisputed invoices as part of and as required under this Agreement even if a dispute arises and the Parties proceed with the dispute resolution process. If the Client disputes an invoice in good faith, the Client must notify the Company of such dispute in writing within thirty (30) days following receipt of the related invoice, and such notice will contain a reasonably detailed description of the dispute and the portion of the invoice in dispute, as well as payment for that portion of the invoice that is not in dispute. Thereafter, the parties agree to work together reasonably and in good faith to resolve such dispute within ten (10) business days following the Company’s receipt of such dispute notice. If the dispute has not resolved within 90 days of the original notice of the dispute, or if any party fails to participate in the negotiations as required under this Agreement, the matter may be resolved by either party initiating legal process.
21. Third Party Applications: Client will be responsible for purchasing any additional third-party applications and AppExchange products identified in the SOW or otherwise necessary to achieve the objectives specified in the SOW, including product specific support and training. All hours dedicated to working or debugging third-party applications are billable.
22. Mutual Representations and Warranties: Each party represents and warrants that as of the date of this Agreement and at all times thereafter: (a) it has the power and authority to enter into and perform its obligations under this Agreement and any SOW; (b) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (c) the execution and delivery of this Agreement by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and shall not conflict with or constitute a default under, any material contract, agreement, or commitment binding upon it, and (ii) shall not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order, or decree of any government, governmental instrumentality, or court having jurisdiction over such Party.
23. Miscellaneous: This Agreement and the rights and obligations of the parties under this Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding any conflict of laws principles. All deposits made by Client hereunder are non-refundable. THE PARTIES HEREBY IRREVOCABLY AGREE, CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK WITH REGARD TO ANY ACTIONS OR PROCEEDINGS ARISING FROM, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION FILED IN ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY, NEW YORK.EACH PARTY HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND IN ANY ACTION DIRECTLY OR INDIRECTLY RELATED TO OR CONNECTED WITH THE PURCHASED SERVICES, OR OTHERWISE ARISING FROM THE RELATIONSHIP OF THE PARTIES HERETO. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER MAY DEPRIVE IT OF AN IMPORTANT RIGHT AND THAT SUCH WAIVER HAS KNOWINGLY AND VOLUNTARILY BEEN AGREED TO BY
SUCH PARTY. No delay or failure of either party to exercise or enforce any right or provision of this agreement will be deemed a waiver of that or any other right or provision. No provision of this agreement may be modified or waived without the express prior written consent of both parties. Sections 2-3, 9-17, 19, and 24-30 of this Agreement will survive any termination of this Agreement and will remain in full force and effect. Company and Client agree that no joint venture, partnership, employment, or agency relationship exists between them. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, Company may assign this Agreement to any of its affiliated companies or in connection with a merger or consolidation involving Company or the sale of substantially all of Company’s assets, in each case to the other party or its successor in such transaction. All notices shall be in writing and sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
24. Relationship of the Parties: Each party hereto is an independent contractor of the other party. Nothing in this Agreement shall constitute a partnership between or joint venture by the parties, or constitute either party the agent of the other.
25. No Third-Party Beneficiaries: Nothing in this Agreement, express or implied, is intended to confer upon any other person or entity any rights or remedies of any nature whatsoever under or by reason of this Agreement.
26. Entire Agreement: This Agreement (including any SOWs) sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all discussions, representations, covenants, promises, discussions, negotiations, and exchanges between them with respect thereto.
27. Unenforceable Provisions: If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect, and, if legally permitted, such offending provision shall be replaced with an enforceable provision that as nearly as possible gives effect to the parties’ intent.
28. Counterparts: This Agreement and any exhibit attached hereto may be executed in multiple counterparts (that may be executed by facsimile), each of which shall be deemed an original and all of which together shall constitute one instrument.
29. Proposal Nondisclosure Notice: Client hereby acknowledges and agrees, by receiving this Statement of Work from Beyond Cloud Consulting Inc. (the “Company”), that the terms set forth in this Statement of Work, including, without limitation, any proposals, pricing terms, hours, proposed services, recommendations, fees, roadmaps and/or other information related to the services proposed to be provided by the Company (collectively, the “Proposal Terms”), regardless of whether this Statement of Work is accepted or executed by Client, are strictly confidential. Accordingly, neither the Client nor any of its affiliates, officers, equity holders, employees, agents or advisors (collectively, the “Client Parties”) will use or disclose any Proposal Terms or this form of Statement of Work except to the Client’s employees or advisors who have a need to know such information for purposes of evaluating Client’s acceptance of this Statement of Work. In addition, each of Client and the Company agree that it would be difficult or impossible to ascertain the Company’s actual damages in the event of any unauthorized use or disclosure of the Proposal Terms or this form of Statement of Work for any reason by any Client Party. Therefore, the parties further agree that a reasonable estimation of the actual damages that the Company would suffer if any Client Party violates the terms of this paragraph is an amount equal to [$93,100.00] (the “Liquidated Damages”). The parties acknowledge and agree, after taking into account the terms of the Statement of Work and all relevant circumstances as of the date hereof, that the Liquidated Damages set forth above represent a reasonable and genuine estimate of the actual damages that the Company would suffer in the event of any unauthorized use or disclosure of the Proposal Terms or this form of Statement of Work by any Client Party, and such amount does not constitute a penalty. Notwithstanding the foregoing, nothing in this paragraph will limit (i) the Company’s rights under this Statement of Work or the associated Master Services Agreement in the event the same is executed by Client or (ii) the right of the Company to seek equitable remedies, including injunctive relief, to the extent available, in respect of any violation of this paragraph by any Client Party.
30. Change Order Clause: Any Change Order related to the project outlined in this document will receive the discounted hourly rate of $175 USD per hour. The Company reserves the right to adjust fees upon project completion and any future development projects.