Conducive's Master Services Terms and Agreement
Updated: May 2023
MASTER SERVICES TERMS AND AGREEMENT
These MASTER SERVICES TERMS AND AGREEMENT ("MSA" or "MSA Terms” or “Agreement”) between Conducive Consulting, Inc., a Texas corporation, with its principal place of business at 3724 Executive Center Drive, Suite 200, Austin, Texas 78731, U.S.A (“Conducive” or “we” or “us” or “our”) and you (“Customer” or “Client” or “you” or “your”) apply to the purchase of Professional Services. By purchasing, paying for or receiving Professional Services from Conducive, you agree to these MSA Terms. If you are entering into these MSA Terms on behalf of your end Customer, you represent that you have the authority to bind your end Customer. If you do not agree to these MSA Terms, or if you are not authorized to accept the MSA Terms on behalf of your end Customer, notify Conducive immediately.
The parties agree as follows:
As used in this Agreement, unless expressly stated otherwise, references to (a) “including” or “includes” means “including, (or “includes”) without limitation”, and (b) “or” mean “either or both”. Unless otherwise specified, all references in this Agreement to “Sections”, “Exhibits”, or “Appendices” are references to the corresponding sections, exhibits and appendices in this Agreement. All monetary values set forth in this Agreement refer to be in United States dollars unless otherwise clearly stated. Other capitalized terms used in this Agreement and not otherwise defined have the meanings set forth in this Section 1.
1.1 “Statement of Work” means a written statement of work to be performed under this Agreement agreed upon and signed by Conducive and Client, substantially in the form described in Section 2.1.
1.2 “Client Materials” means written or graphic materials, software code, information, data, trademarks, service marks and logos developed, owned or licensed by Client and delivered to Conducive under this Agreement.
1.3 “Fees” means the fees payable by Client to Conducive for Services, as described in each order, purchase order, bill or invoice.
1.4 “Conducive Materials” means pre existing works of Conducive, works developed by Conducive independently of Conducive’s obligations under this Agreement, development or authoring tools or code developed by Conducive (including animation templates and engines, graphics manipulation engines, design and creative processes, web development and web site templates and engines, and flash code), and materials licensed to Conducive by third parties.
1.5 “Conducive Samples” means alternative or sample deliverables, including logos, brands, designs, creatives and animation, provided by Conducive to Client as part of the design process but not part of the final design developed for Client by Conducive under a Statement of Work.
1.6 “Non-Practicing Entity” means a company that acquires patents or patent rights and that generates revenue by monetizing those patents without manufacturing or using the patented invention(s).
1.7 “Effective Date” means the date a purchase order is issued to Conducive by Client or the date an invoice is issued to Client by Conducive for the purchase of Professional Services, whichever occurs first.
1.8 “Services” or “Professional Services” means all services provided to Client by Conducive in accordance with the terms and conditions of this Agreement.
Other terms are defined elsewhere in this Agreement.
2.1 Statement of Work. All Services to be provided by Conducive will be described in Statements of Work. Each Statement of Work will include a description of Services including the dates and hours of Service, the location where Services will take place, and Fees payable by Client and payment schedule. Statements of Work will be numbered sequentially (e.g. 1, 2, 3, etc.) A Statement of Work is not effective unless it is in writing and signed by both parties. Statements of Work will be deemed part of this Agreement and may not be terminated or cancelled except in accordance with Section 3. In the event of a conflict between the terms of this Agreement and a Statement of Work, the Statement of Work will govern.
2.2 Changes. If Client requests changes in Services to be provided by Conducive under a Statement of Work, Conducive may reasonably adjust the Fees in such Statement of Work to reflect additional Services and the cost of the changes. A Statement of Work may not be changed except by a written request for change in the form of a change order signed by both parties.
2.3 Delivery of Services. Conducive will provide to Client the Services substantially as directed by the Client in accordance with the terms and conditions of this Agreement. Conducive will use commercially reasonable efforts to deliver Services. Conducive may engage subcontractors to provide Services.
2.3 Client Responsibilities. All Services will take place at Conducive’s facilities in Austin, TX or at remote locations throughout the United States. Client will reasonably cooperate with Conducive and will provide to Conducive all Client information and materials and access to Client’s business necessary for Conducive to provide the Services. Client is responsible for the completeness and accuracy of Client Materials, and Conducive may rely on such completeness and accuracy. Client will respond to Conducive’s requests for approvals, decisions or other actions within a reasonable time. If Client fails to meet its obligations under this Agreement, including delay or failure to meet its deadlines for delivery of materials or approval, and such failure causes a delay or failure in the performance of Services, the delivery schedule for Services will be extended accordingly and Client will be responsible for costs resulting from such delay or failure. Conducive will not be responsible for any breach of this Agreement to the extent such breach results from Client’s breach of any warranty or obligation under this Agreement.
2.4 Primary Contacts. Conducive and Client will each designate a primary contact. Client’s primary contact person will be responsible for consolidating and providing feedback to Conducive and providing direction to Conducive and approvals on behalf of Client.
3.1 Term. The term of this Agreement will begin on the Effective Date and end two years later unless terminated earlier, except that if there are no outstanding Statements of Work under which Conducive is providing Services to Client then this Agreement will terminate automatically upon completion of Services under the last Statement of Work. This Agreement will be automatically extended by any Statement of Work signed during the term until the earlier of completion of Services under such Statement of Work or the termination of such Statement of Work.
3.2 Termination for Cause. If either party materially breaches this Agreement or and does not cure such breach within 90 days of written notice of breach from the non-breaching party, or if Client fails to pay an invoice when due and does not cure such failure within 15 days of written notice of such failure from Conducive, the non-breaching party may terminate either this Agreement or the Statement of Work under which the breach occurred by giving written notice of termination to the breaching party.
3.3 Termination for Insolvency. Either party may terminate this Agreement immediately by providing written notice to the other party if the other party becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, adopts a plan of complete liquidation or dissolution, or ceases to do business.
3.4 Effect of Termination. If Conducive terminates this Agreement or a Statement of Work under Section 3.2 or if Client terminates this Agreement or a Statement of Work or terminates or cancels any portion of the Services under a Statement of Work pursuant to Section 3.3, Client will pay Conducive for (a) all Services delivered through the date of notice of termination and (b) all Services scheduled to be performed in the 30 days after notice of Termination. If Client terminates this Agreement or a Statement of Work under Section 3.2, Conducive will reimburse to Client a prorated portion of any Fees paid in advance corresponding to undelivered Services less any Fees for Services scheduled to be performed in the 30 days after notice of termination. Upon termination for any reason, Client will return to Conducive all Deliverables for which it has not paid and Conducive will provide to Client all Deliverables for which it has paid.
4.1 Fees. For the Services provided by Conducive, Client will pay the Fees set forth in the applicable Statement of Work plus any applicable sales or other transaction-based tax. Services performed by Conducive at Client’s request outside of the scope of a Statement of Work will be billed to Client at Conducive’s then-current standard hourly rates.
4.2 Expenses. Client will pay for or reimburse Conducive for reasonable out-of-pocket expenses, including travel and travel-related expenses, telephone, shipping and duplicating.
4.3 Invoices. Unless specified otherwise in a Statement of Work, Conducive will bill Client for Fees and expenses on a monthly basis and invoices will be payable by Client upon receipt.
4.4 Late Payments. If any invoice is not paid within thirty (30) days of receipt by Client, Client will pay Conducive interest on the amount due, beginning five days after the invoice is mailed by Conducive, at a rate of 1.5% per month, or the highest rate permitted by applicable law if that is less.
5. OWNERSHIP AND LICENSES; CONFIDENTIALITY
5.1 Work Made for Hire. Except for any Conducive Materials or Client Materials incorporated therein, the deliverables for which Conducive has received payment from Client are “work made for hire” and Conducive hereby transfers to Client all right, title and interest in and to such deliverables. Client may not use, perform, publish or distribute Conducive Materials other than as part of the deliverables.
5.2 Conducive Materials. Conducive retains all right, title and interest in and to the Conducive Materials. Conducive hereby grants to Client a perpetual license to use Conducive Materials in accordance with this Agreement solely to the extent Conducive Materials are incorporated into Deliverables. Client may not use, perform, publish or distribute Conducive Materials other than as part of the Deliverables. The source code for any software included in Conducive Materials is the confidential and proprietary information of Conducive, and Client may not attempt to decompile, disassemble, reverse engineer or use any other process to gain access to the source code of such software.
5.3 Client Materials. Client retains all right, title and interest in and to the Client Materials. Client hereby grants to Conducive a license to use Client Materials solely in connection with the performance of Services and in accordance with this Agreement.
5.4 Confidential Information. Conducive and Client may have access to certain information or materials of the other party that is designated in writing by the disclosing party at the time of or promptly after disclosure as confidential or proprietary (“Confidential Information”). The terms and conditions of this Agreement are deemed to be Confidential Information. The recipient of Confidential Information of the other party must use the same care to prevent disclosure of such Confidential Information as it uses to safeguard its own Confidential Information but in no event less than a reasonable degree of care. Confidential Information does not include information that is (i) in the public domain other than by breach of this Agreement by the recipient, (ii) already known by the recipient at the time of its disclosure without obligation of confidentiality, (iii) rightfully received from a third party by the recipient without obligation of confidentiality, or (iv) developed independently by the recipient. Each recipient may disclose Confidential Information in accordance with a judicial or other governmental order, provided that the recipient gives the discloser prompt advance written notice of the required disclosure and provides reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure. The recipient will be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the discloser, provided that the recipient will not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information of the recipient, including ideas, concepts, know-how or techniques contained therein. The recipient will have no obligation to limit or restrict the assignment of such persons or pay royalties for any work resulting from the use of residuals. Nothing in this Section 5.5 will be deemed to grant the recipient a license under the discloser's copyrights or patents.
6. WARRANTIES AND LIMITATION OF LIABILITY
6.1 General Warranty. Conducive and Client each represents and warrants that this Agreement is binding upon it and that the person signing this Agreement on its behalf is authorized to do so, and that it has full power and authority to grant the licenses and perform its obligations under this Agreement.
6.2 Conducive’s Limited Warranty. Conducive warrants that it will deliver the Services in a professional. EXCEPT FOR THE WARRANTY IN THIS SECTION
6.2, CONDUCIVE PROVIDES THE SERVICES TO CLIENT “AS IS” AND MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.3 Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF THIS AGREEMENT OR THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PAST DUE FEES OR EXPENSES, IN NO EVENT WILL (I) CLIENT’S LIABILITY FOR A CLAIM EXCEED THE TOTAL DOLLAR AMOUNTS PAYABLE TO CONDUCIVE UNDER THE STATEMENT OF WORK THAT GAVE RISE TO SUCH LIABILITY; AND (II) CONDUCIVE’S LIABILITY EXCEED IN THE AGGREGATE FOR ALL CLAIMS, EITHER: (i) THE TOTAL DOLLAR AMOUNTS PAID TO CONDUCIVE UNDER THE STATEMENT OF WORK THAT GAVE RISE TO SUCH LIABILITY; OR (ii) THE TOTAL DOLLAR AMOUNT PAID BY CLIENT DURING THE TWELVE (12) MONTHS THAT IMMEDIATELY PRECEDED THE CLAIM, WHICHEVER IS LESS.
7.1 Conducive’s Indemnification. Conducive will defend, indemnify, and hold harmless Client from and against any claims, actions, demands, legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs or expenses, including reasonable attorneys’ fees, (“Claims”) to the extent such Claims arise out of a claim that Client’s use of Conducive Materials in accordance with this Agreement infringes the copyright, patent, trademark, trade secret or other proprietary or intellectual property right of a third party. If any Conducive Material becomes or in Conducive’s reasonable opinion is likely to become the subject of a claim of infringement of a third party intellectual property right, Conducive may (i) procure the right for Client to continue using such Conducive Material at no additional cost to Client; (ii) provide a comparable non-infringing replacement at no additional cost to Client; or (iii) terminate Client’s right to use such Conducive Material and provide a reasonable refund of Fees to Client to the extent Client’s ability to use a Deliverable is materially adversely affected. Conducive has no obligation to indemnify Client under this Section 7.1 to the extent a Claim arises from a Non-Practicing Entity, the Client’s failure to comply with the terms of this Agreement or from Client’s gross negligence or willful misconduct. This Section 7.1 states Conducive’s entire liability to Client with respect to any claims of infringement.
7.2 Client’s Indemnification. Client will defend, indemnify, and hold harmless Conducive from and against any Claims to the extent such Claims arise out of a claim that any Client Material or Conducive’s use of Client Materials in accordance with this Agreement (i) infringes the copyright, patent, trademark, trade secret or other proprietary or intellectual property right of a third party or (ii) does not comply with any applicable law, regulation, judgment or order.
7.3 Indemnification Procedure. Each party will provide to the other Party prompt notice of any Claim for which it is seeking indemnification. The indemnifying party will have sole control over the resolution of a Claim.
8.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior written or oral understandings or agreements between the parties. No modification of this Agreement or waiver of rights under this Agreement will be effective unless in writing signed by each party.
8.2 Independent Contractors. Conducive is an independent contractor and nothing in this Agreement may be construed to create a joint venture, partnership or relationship of principal and agent between Conducive and Client.
8.3 Non-Solicitation of Employees. During the term of this Agreement and for one year after termination or expiration of this Agreement, neither party may solicit for employment any employee of the other party. If either party solicits for employment any employee of the other party, and that employee accepts employment, of any form or nature, with the soliciting party, the soliciting party agrees to pay, within 30 days of the start date of employment, the other party an amount equal to three times the total first-year compensation, including, but not limited to, bonuses and stock options, offered to the solicited employee.
8.4 Notices. All notices and other communications under this Agreement must be in writing and will be effective when delivered by hand or by email, or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, or by overnight courier to the parties at the addresses first listed above.
8.5 Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement by the other Party will not operate or be construed as a waiver of any subsequent breach of this Agreement.
8.6 Compliance with Law. Each party will perform its obligations in a manner that complies with applicable federal, state and local laws and regulations.
8.7 Governing Law; Disputes. This Agreement will be governed by and construed under the laws of the State of Texas, without reference to conflicts of laws principles. Any dispute resolution proceeding or legal action arising under this Agreement must be brought in the state and/or federal courts sitting in Travis County, Texas. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement will be entitled, in addition to any other rights and remedies it may have, to reimbursement for its legal expenses, including court costs and reasonable attorneys’ fees.
8.8 Assignment. Neither party may assign this Agreement to any third party without the advance written consent of the other party. The merger or consolidation of one party into, or the sale of all or substantially all of the assets of such party to, a third party will not be deemed to be an assignment.
8.9 Force Majeure. Except for the obligation to make payments, nonperformance of either party will be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.
8.10 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable by any law, rule, order or regulation of any government, or by the final determination of any state, federal or other court, such invalidity will not affect the enforceability of any other provisions not held to be invalid.
8.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original and all of which together will constitute one instrument.