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Master Service Agreement

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This MASTER SERVICE AGREEMENT (“MSA”) is made between INVITE NETWORKS INCORPORATED, a Utah corporation (“INVITE”), located at 4525 S. Wasatch Blvd., Suite 302, Salt Lake City, Utah 84124, and the Customer identified on the Order Form (“Client”), together referred to as the “Parties” and each individually as a “Party.” Specific services terms, product details and any applicable license and/or subscription terms will be set forth in applicable Order Form(s) and SOW(s) (hereinafter collectively referred to as “SOWs”), each of which become binding on the Parties and are incorporated into this MSA upon execution of an Order Form and/or Statement of Work (“SOW”). Each Order Form and/or SOW is governed by and incorporates the following documents in effect as of the date of signature, collectively referred to as the “Agreement” that consists of:

  1. the Order Form and/or Statement of Work;
  2. any attachments and/or appendix(ices) to an Order Form and/or Statement of Work; and
  3. this MSA.

 

INVITE and Client agree as follows:

 

  1. Term: The term of this MSA shall start at the date of signature of any Order Form or SOW referencing or incorporated into this MSA. The term of this MSA and the Agreement shall continue as long as an Order Form or SOW referencing or incorporated into this MSA remains valid and in effect. This MSA will not terminate unless all applicable Statements of Work (SOWs) have been terminated previously. Unless otherwise stipulated in the Order Form or SOW, expiration of the term for ongoing services will transition to a month-to-month agreement.
  2. Services: INVITE shall provide services to the Client as described on one or more SOWs signed or electronically approved by the Client with reference to the terms and conditions in this MSA.  Invite shall perform services in a timely manner and have the final product and/or service (hereinafter referred to as “Deliverable”) ready for the Client no later than the due date specified in the applicable SOW (hereinafter referred to as “Completion Date”). The Completion Date is subject to change in accordance with any applicable Change Order process defined in the SOW. Client shall assist INVITE by promptly providing all information requests known or available and relevant to the SOW in a timely manner.
  3. Contract Price: For performance of the services and/or product provided by INVITE, Client shall pay to INVITE all fees due under the applicable SOW and in accordance as defined in the Deliverable.
  4. Dates of Performance: INVITE will begin providing the services and/or product upon receipt of signed SOW. Unless terminated as provided in this MSA, INVITE will complete the services and/or product by the Completion Date set forth in the SOW. For ongoing services such as Managed Services, services will be delivered continuously starting at a date agreed upon by both parties in the SOW. Unless stipulated, start of service delivery begins on the date of signature of the SOW.
  5. Change in Services: If Client desires changes to the SOW, Client shall submit to INVITE a written request. If present, the change order process in applicable SOWs governs any changes made to the SOW. The parties may execute additional SOWs describing services and/or products to be amended, which will become part of the SOW duly executed by INVITE and the Client. If additional SOWs are executed, then Client shall pay Company for all services performed prior to the additional SOW before INVITE begins work on the new SOW.
  6. Termination of SOW: INVITE shall have the right to modify, reject, or terminate any SOW and any related work in process by providing sixty (60) days written notice to Client. In the event INVITE terminates the SOW prior to completion of the services and/or product, the Client shall pay INVITE the fees due under the SOW with respect to the services and/or product completed as of the date of termination.
  7. Payment of Services: In exchange for INVITE’s services and/or product the Client shall pay INVITE the contract price as set forth in any SOW. For non-recurring services, INVITE will submit a final invoice to Client for all non-recurring services rendered by the Completion Date and Client shall promptly pay the same within thirty (30) days of the Client’s receipt of the invoice. Client is restricted from using any form of the Deliverable resulting from non-recurring services if full payment is not received by INVITE in accordance with the terms set forth in the SOW. INVITE will submit a periodic invoice for all recurring services and Client shall promptly pay the same. Client shall pay all pre-approved travel and other expenses incurred by INVITE in performing the services and/or product. In the event of a good faith dispute regarding an item appearing on an invoice, INVITE shall have the right to withhold the Deliverable while the parties attempt to resolve the disputes.
  8. Penalties & Default:  If Client fails to pay INVITE any undisputed amount Client is required to pay to INVITE under the SOW within 30 days after the date it is due, the undisputed past due amount shall incur interest of 3% per month or the maximum rate allowed by law until fully paid.  Client acknowledges that its failure to pay timely any undisputed fees and charges due to INVITE, or any portion thereof, will be a material breach of this MSA.  INVITE may, at its election and in addition to pursuing all other remedies, withhold any services and/or product INVITE is required to provide or terminate this MSA and any applicable SOW.
  9. Limitations Period: Any claim relating to this MSA must be brought within 180 days after the claim arises. In addition, disputing an amount in an invoice must be brought by Client within 90 days after the invoice date of the disputed amount.
  10. Taxes: Amounts payable by Client for services and/or product on applicable SOW do not include local, state, or federal sales, use, value-added, or other taxes or tariffs.  Client shall pay all such taxes or tariffs as may be imposed upon INVITE or Client related to the Services, except any income taxes imposed on INVITE by the United States of America or any state or local government therein. Client will be invoiced for, and Client will promptly pay to INVITE, any such taxes or tariffs if INVITE is invoiced for them on Client’s behalf.
  11. Representations and Warranties:
    1. INVITE Representation: INVITE represents that any materials used in the Deliverable will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance or regulation.
    2. Client’s Representation: Client represents that any materials provided to INVITE by Client for incorporation into the Deliverable will not knowingly (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance, or regulation.
    3. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS MSA OR ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED.
  12. Independent Contractor:  INVITE provides the services and/or product as an independent contractor. This MSA or any related SOW, change order or revised SOW will not create an employer-employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees, or affiliates.
  13. Ownership of Deliverables: “Intellectual Property Rights” means all (a) rights associated with works of authorship, including but not limited to copyrights, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents and (c) all other intellectual property rights in any jurisdiction throughout the world. To the fullest extent permitted by law, INVITE retains ownership in all Intellectual Property rights of the Deliverable. Upon full payment of the Deliverable, INVITE grants Client a perpetual, non-exclusive and non-transferable license to use, copy, reproduce, display, or distribute the Deliverable. Client shall retain sole ownership of all Intellectual Property Rights in connection with any original material it provides to INVITE for use within the Deliverable. After a termination upon full payment for the work in process, INVITE will grant Client a perpetual, non-exclusive and non-transferable license to use, copy, reproduce, display, or distribute the work in process. In no event will INVITE be liable for any claims related to or arising from Client’s improper use of the Deliverable, work in process, or components thereof.
  14. Limitation of Liability: INVITE will not be liable for any loss of use, interruption of business, lost profits, or any indirect, special, incidental, or consequential damages of any kind regardless of the form of action whether in contract, tort, strict product liability, or otherwise, even if it has been advised of the possibility of such damages. Except as expressly provided in applicable SOWs, INVITE disclaims all express or implied warranties, including but not limited to all warranties of merchantability, fitness, for a particular purpose, or non-infringement. In addition, INVITE makes no warranty, express or implied, that INVITE will detect or mitigate all security threats and vulnerabilities in Client’s environment or that INVITE’s performance of services will render Client’s environment invulnerable. Client is responsible for establishing Client’s own security policy and response procedures. Except to the extent arising from a breach of Section 12(a) or (b), in no event shall either party’s aggregate liability under this MSA exceed the fees paid or payable to INVITE under the applicable SOW for the most recent twenty-four (24) month period of service.
  15. Compliance with Laws: Each party shall perform all its obligations under this MSA in compliance with all foreign, federal, state, and local statutes, orders, and regulations, including those relating to privacy and data protection.
  16. Mutual Indemnification: Each Party shall indemnify, defend, and hold the other Party harmless from all liabilities, costs, and expenses (including, without limitation, attorney’s fees) that such Party may suffer, sustain, or become subject to as a result any misrepresentation or breach of warranty, covenant or agreement of the indemnifying Party contained herein or the indemnifying Party’s gross negligence or willful misconduct in performance of its obligations under this MSA or applicable SOWs.
  17. Confidentiality:  Neither party will, without the prior written consent of the other party: (a) disclose any of the terms of this Agreement, or (b) disclose or use the Confidential Information of the other party (except as expressly permitted by the other party or required to achieve the purposes of applicable SOW). Each party will use reasonable efforts to protect the other’s Confidential Information and will use at least the same efforts to protect such Confidential Information as the party would use to protect its own.  A party may disclose Confidential Information if required to do so by a governmental agency, by court order or operation of law, or if necessary, in any proceeding to establish rights or obligations under this MSA and shall, where legally permitted, give the other party prompt notice prior to disclosing.
  18. General: Neither party may assign this MSA without the prior written consent of the other party and any attempt to do so will void this MSA and applicable SOWs. Any notice or consent under this MSA, will be in writing to the address specified below. If any provision of this MSA, is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this MSA, associated SOW, change orders, revised SOW will otherwise remain in full force and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this MSA is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this MSA. Both parties agree that the MSA is signed by a duly, authorized company representative authorized to bind the company to its terms and conditions and no consent from any third party is required.
  19. Governing Law; Dispute Resolution:
    1. Governing Law; Forum.  Utah state law, without regard to choice-of-law principles, governs all matters relating to this MSA. Any legal proceeding relating to this MSA will be brought in a U.S. District Court for the District of Utah, or absent federal jurisdiction, in a state court of competent jurisdiction in Salt Lake City, Utah.
    2. Waiver of Jury Trial and Class Action. Each party, to the extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a jury trial and any right to pursue any claim or action relating to this MSA on a class or consolidated basis or in a representative capacity.  If for any reason the jury trial waiver is held to be unenforceable, the parties agree to binding arbitration for any dispute relating to this MSA under the Federal Arbitration Act, 9 U.S.C. § 1 et. seq. The arbitration will be conducted in accordance with the JAMS Comprehensive Arbitration Rules. Judgment upon the arbitration award may be entered in any court having jurisdiction.
  20. Remedies: Both parties reserve all remedies available at law or equity for any disputes that arise under this MSA. In the event of a suit or proceeding under this MSA, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.

 

INVITE Contact Information:

INVITE NETWORKS INCORPORATED

4525 S. Wasatch Blvd., Suite 302

Salt Lake City, Utah 84124

Tel: (385) 313-9300

Email:  support@invitenetworks.com