Service Solicited - 2020 - MCCI - Master Services Agreement 60972 Laserfiche SQL UpgradeMASTER SERVICES AGREEMENT NO. 60972
This Master Services Agreement No. 60972 ("Agreement") is effective
on the date of the last signature, ("Effective Date") and is made by
and between MCCi, LLC, a Florida limited liability company, and its
Affiliates with its principal office located at 3717 Apalachee Parkway,
Suite 201, Tallahassee, FL 32311 ("MCCi") and Client (defined herein).
MCCi and Client may each be referred to individually herein as "Party"
or collectively as the "Parties".
The terms "Client" in this Agreement shall also include Client's
"Affiliates," defined as a legal entity that directly or indirectly controls,
is controlled by, or is under common control with the party. It is
agreed that Client's Affiliates shall enjoy the same rights, benefits and
obligations set forth in this Agreement as are applicable to Client.
The Parties hereto intending to be legally bound hereby, agree as
follows:
1. Scope of Service
MCCi and Client may develop and enter into one or more sales orders,
attached herein or incorporated by reference, incorporating a
description of the specific goods and/or services requested by Client
(each, and as modified in writing by the Parties, an "Order"). MCCi will
provide to Client those goods and/or services described as its
obligation in the Order (collectively, the "Services"). If applicable,
each Order will also describe items specifically required to be
delivered by MCCi to Client (the "Deliverables"), and the acceptance
criteria for each of the Deliverables. Further, each Order will set forth,
among other things, tasks to be performed by the Parties and roles
and responsibilities of each Party. Each Order shall specifically
identify this Agreement and indicate that it is subject to the terms
hereof. To the extent there are any conflicts or inconsistencies
between this Agreement and any Order or Client purchase order,
except in regard to Sections 2 or 3 herein, the provisions of this
Agreement shall govern and control. To the extent that there are any
conflicts or inconsistencies between this Agreement and any Client -
entered third party government purchasing agreement ("Purchasing
Vehicle", the provisions of the Purchasing Vehicle shall govern and
control.
No change order, notice, direction, authorization, notification or
request (collectively, "Change Order") will be binding upon Client or
MCCi, nor will such Change Order be the basis for any claim for
additional compensation by MCCi, until Client and MCCi have agreed
in writing to change the terms of an applicable Order, or to execute
a new Order, as appropriate.
2. Fees
Client shall pay to MCCi the fees and other compensation set forth in
each Order. By executing the applicable Order, Client acknowledges
their pre -approval for any Order Expenses quoted. Unless otherwise
specified, Client will also reimburse MCCi for all reasonable out-of-
pocket travel, living and other ancillary expenses paid or incurred by
MCCi in connection with the Services ("Order Expenses"). If relevant,
MCCi will follow Client's expense policy, to the best of its ability. If a
dispute occurs regarding MCCi's billing of Order Expenses in
Last updated: June 25, 2020
conformity with Client's expense policy and greater than five percent
(5%) of a specific bill, such dispute will be subject to investigation and
correction; otherwise Client agrees to reimburse MCCi for the full
amount of expenses billed. The Client acknowledges that it may incur
expenses due to circumstances such as non-refundable airline tickets,
training/install charges, hotel reservations, rental cars, etc., in the
event that i) Client cancels or reschedules the event, after MCCi has
made these arrangements; or ii) If Client site/team is not prepared
upon MCCi's arrival, which results in cancellation, delays, and/or the
need to reperform Deliverables.
Client acknowledges that the price of the license and/or subscription
for the use of a third -party licensed product is subject to increases
during the term of the license and/or subscription or at the time of
renewal. In the event that MCCi is reselling a license and/or
subscription to a third -party product to Client with at least 15 days
prior to written notice (an email will be sufficient) of an increase in
the price of the license and/or subscription. To the extent that Client
does not agree to pay such increase in the license and/or
subscription, Client must provide written notice to MCCi within 15
days of notice of such increase. Upon receipt of such notice, MCCi
will cancel Client's license and/or subscription to the third -party
licensed product.
3. Invoicing and Payment
Unless otherwise stated in an Order, MCCi will invoice Client for all
fees, charges and reimbursable expenses on a monthly basis and
upon completion of each Order.
Client agrees to pay all undisputed invoices and undisputed portions
of a disputed invoice in full within thirty (30) days from the date of
each invoice. Failure to pay invoices by the due date, unless MCCi has
been informed by said due date that an invoice is being contested
and the reason therefore, may result in the imposition of interest
charges to the extent allowable by law as well as any associated legal
and collection fees incurred.
Client further agrees to pay amounts equal to any federal, state or
local sales, use, excise, privilege or other taxes or assessments,
however designated or levied, relating to any amounts payable by
Client to MCCi under this Agreement or any other Agreement
between the Parties, exclusive of taxes based on MCCi's net income
or net worth, and understands and accepts that any pricing defined
in an Order does not include such taxes.
All recurring software maintenance support, subscriptions, and/or
other service packages ("Recurring Services") will automatically
renew and be billed unless Client has terminated the Agreement per
Section 4 below or provided sixty (60) days written notice prior to the
scheduled renewal date of the Recurring Services. Once payment has
been received, no refunds for Recurring Services are available.
4. Term. Termination. and Cancellation
This Agreement will commence on the Effective Date and will be
effective for a one (1) year period and will renew automatically for
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MASTER SERVICES AGREEMENT NO. 60972
one (1) year periods and continue in full force and effect, unless
terminated by either Party as set forth below. Termination of this
Agreement or any Order hereunder may occur upon any of the
following:
(a) Thirty (30) days after a Party's receipt of written notice from the
other Party that this Agreement or the Services, in whole or in
part under an Order, shall be terminated; or
(b) Thirty (30) days after one Party notifies the other in writing that
they are in breach or default of this Agreement, unless the
negligent Party cures such breach or default within such thirty
(30) day period; or
(c) Fifteen (15) days after the filing of a petition in bankruptcy by
or against either Party, any insolvency of a Party, any
appointment of a receiver for such Party, or any assignment for
the benefit of such Party's creditors (a "Bankruptcy Event"),
unless such Party cures such Bankruptcy Event within the
fifteen (15) day period.
In all events, Client shall be liable for full payment for Services and
reimbursement of MCCi's expenses incurred through the effective
date of termination. If Client cancels or puts on hold an Order
between completed milestones, MCCi will invoice Client for a pro-
rated share of the uncompleted milestone(s) for Services performed
through the date of such termination or delay.
5. Working Arrangements
All Services shall be performed remotely, unless otherwise agreed to
by the Parties. If Services are to be performed on Client's premises,
Client shall provide the following to MCCi Personnel: (i) a suitable and
adequate work environment, including space for work and
equipment for performance of the Services; (ii) access to and use of
Client's facilities and relevant information, including all necessary
software, hardware and documentation; (iii) timely assistance in the
acquisition of, or correction of any hardware or software problems
that would affect the performance of Services; and (iv) any other
items set forth in each Order.
Client will ensure that all Client's personnel, vendors, and/or
subcontractors who may be necessary or appropriate for the
successful performance of the Services will, on reasonable notice: (i)
be available to assist MCCi Personnel by answering business,
technical and operational questions and providing requested
documents, guidelines and procedures in a timely manner; (ii)
participate in the Services as reasonably necessary for performance
under an Order; and (iii) be available to assist MCCi with any other
activities or tasks required to complete the Services in accordance
with the Order.
6. MCCi Personnel
Neither MCCi nor its Personnel are or shall be deemed to be
employees of Client but rather as independent contractors. MCCi
shall be responsible for the compensation of its Personnel, in
addition to any applicable employment taxes, workmen's
compensation and any other taxes, insurance or provisions
associated with the employment of such personnel.
Last updated: June 25, 2020
In addition, MCCi shall be responsible for all acts or omissions of its
Personnel. MCCi will also not discriminate in the referral or hiring of
MCCi Personnel on the bases of race, religion, sexual orientation,
color, sex, age, national origin, disability that does not affect the
ability for an individual to perform his or her job, or other protected
categories as required by state, federal, and local laws.
MCCi may utilize independent subcontractors in satisfying its
obligations under this Agreement (collectively with MCCi employees
"Personnel"). MCCi affirms to Client that these resources will adhere
to and are subject to the same representations made by MCCi
throughout this Agreement.
Upon receipt of notice from Client that any MCCi Personnel is not
suitable, MCCi shall remove such person from the performance of
Services and will provide a qualified replacement as quickly as
possible.
Unless a particular MCCi Personnel member has been identified as a
key resource to the relevant Order, MCCi at its sole discretion may
reassign, if and as necessary, other appropriately qualified MCCi
Personnel to the relevant Order as long as such assignment will not
affect MCCi's fee for the Services defined or ability to satisfy its
Deliverables.
Neither Party shall be deemed to be a legal representative of the
other nor has any authority, either express or implied, to bind or
obligate the other in any way.
7. Non -Solicitation
Each Party agrees not to directly or indirectly solicit, offer
employment to, or accept any services outside of this Agreement
from any employee or independent contractor of the other Party who
provided services for the non -soliciting Party within the previous
twelve (12) months, during the term of this Agreement, and for twelve
(12) months thereafter. Notwithstanding the foregoing, either Party
may solicit for employment, offer employment to, employ, or engage
as a consultant or advisor, any of the other Party's personnel who: (i)
had no previous direct contact with the soliciting Party's personnel in
connection with, and during the performance of, the Services
hereunder, or (ii) have responded to a general, publicly -available
advertisement for employment at such Party (including its affiliates),
or (iii) make unsolicited approaches or inquiries to such Party
(including its affiliates) regarding employment opportunities. The
current employing Party, in its sole discretion, may waive this
provision in writing for an individual. In consideration for such waiver,
other Party agrees to pay a placement fee equal to fifty percent (50%)
of such person's new total annual compensation. This placement fee
shall be due immediately upon such person's commencement of
services.
8. Confidential Information
The Parties acknowledge that in the course of MCCi providing
Services for Client hereunder, each may receive Confidential
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MASTER SERVICES AGREEMENT NO. 60972
Information (as defined below) of the other Party. Any and all
Confidential Information in any form or media obtained by a
Recipient shall be held in confidence and shall not be copied,
reproduced, or disclosed to third parties for any purpose whatsoever
except as necessary in connection with the Services provided under
this Agreement. The Recipient further acknowledges that it shall not
use such Confidential Information for any purposes other than in
connection with the activities contemplated by this Agreement. All
consultants assigned by MCCi to Client will sign appropriate forms of
confidentiality agreements on or prior to their start date.
"Confidential Information" means any and all confidential
information of a Party disclosed to the other Party, including, but not
limited to, research, development, proprietary software, technical
information, techniques, know-how, trade secrets, processes,
customers, employees, consultants, pricing information and financial
and business information, plans and systems. Confidential
Information shall not include information which: (i) was known to the
Party receiving the information (the "Recipient") prior to the time of
disclosure by the other Party (the "Disclosing Party"); (ii) at the time
of disclosure is generally available to the public or after disclosure
becomes generally available to the public through no breach of
agreement or other wrongful act by the Recipient; (iii) was lawfully
received by Recipient from a third party without any obligation of
confidentiality; or (iv) is required to be disclosed by law or order of a
court of competent jurisdiction or regulatory authority.
The obligations set forth in this Section shall survive termination of
this Agreement for a period of three (3) years thereafter.
9. Intellectual Property
Unless otherwise specified in any Order, title to all materials,
products and/or Deliverables, including, but not limited to, reports,
designs, programs, specifications, documentation, manuals, visual
aids, and any other materials developed and/or prepared for Client
by MCCi under any Order (whether or not such Order is completed)
("Works"), and all interest therein shall vest in Client and shall be
deemed to be a work made for hire and made in the course of the
Services rendered hereunder. MCCi shall retain a non-exclusive,
royalty -free, world-wide, perpetual license to use, sell, modify,
distribute and create derivative works based upon any of the
foregoing Works in its information technology professional services
business, provided that in so doing MCCi shall not use or disclose any
Client Confidential Information or Deliverables unique to or owned
by Client. To the extent that title to any such Works may not, by
operation of law, vest in Client or such Works may not be considered
works made for hire, all rights, title and interest therein are hereby
irrevocably assigned to Client. All such Works shall belong exclusively
to Client, except as set forth herein, with Client having the right to
obtain and to hold in its own name, copyrights, registrations or such
other protection as may be appropriate to the subject matter, and
any extensions and renewals thereof. MCCi agrees to give Client and
any person designated by Client, reasonable assistance, at Client's
expense, required to perfect the rights defined in this Section 8.
Unless otherwise requested by Client, upon the completion of the
Last updated: June 25, 2020
Services to be performed under each Order or upon the earlier
termination of such Order, MCCi shall immediately turn over to Client
all Works and Deliverables developed pursuant to such Order,
including, but not limited to, working papers, narrative descriptions,
reports and data.
Notwithstanding the foregoing, the following shall not constitute the
property of Client: (i) MCCi software, including but not limited to any
proprietary code (source and object), which is subject to third -party
license agreements with MCCi; (ii) those portions of the Deliverables
which include information in the public domain or which are generic
ideas, concepts, know-how and techniques within the computer
design, support and consulting business generally; and (iii) those
portions of the Deliverables which contain the computer consulting
knowledge, techniques, tools, routines and sub -routines, utilities,
know-how, methodologies and information which MCCi had prior to
or acquired during the performance of its Services for Client and
which do not contain any Confidential Information (as hereinafter
defined) of Client conveyed to MCCi. To the extent that any portion
of the Deliverables includes information or material that falls within
the exceptions to property of Client described in Subsection (iii)
above, MCCi shall be deemed to have granted Client a paid up, world-
wide, non-exclusive license to use any such information or material
imbedded in the Deliverables for its internal business needs and a
non-exclusive license to make copies thereof for use only in its and
its affiliates' facilities, subject to third party license agreements, if any.
Should MCCi, in performing any Services hereunder, use any
computer program, code or other materials developed by it
independently of the Services provided hereunder ("Pre-existing
Work"), MCCi shall retain any and all rights in such Pre-existing Work.
MCCi hereby grants Client a paid up, world-wide, non-exclusive
license to use and reproduce the Pre-existing Work for its internal
business needs.
Client understands and agrees that MCCi may perform similar
services for third Parties using the same personnel that MCCi may
use for rendering Services for Client hereunder, subject to MCCi's
obligations respecting Client's Confidential Information pursuant to
Section 8.
10. Data Privacy
In the event that MCCi, in the course of providing Services to Client,
receives, stores, maintains, processes or otherwise has access to
"Personal Information" (as defined by the State Data Protection
Laws and/or European Union Directives, and including, but not
limited to, an individual's name and social security number, driver's
license number or financial number) then MCCi shall safeguard this
information in accordance with these laws. MCCi may disclose
Personal Information for business purposes only on a need -to -know
basis and only with (i) MCCi Personnel, (ii) any third party service
providers that has agreed to safeguard Personal Data in a like
manner as MCCi safeguards such information, and (iii) with other
entities authorized to have access to such information under
applicable law or regulation. MCCi may disclose Personal Data when
necessary to protect its rights and property, to enforce its terms of
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MASTER SERVICES AGREEMENT NO. 60972
use and legal agreements, as required or permitted by law, or at the
request of law enforcement authorities and the courts, and pursuant
to a subpoena. MCCi shall have no duty to notify Client of such
compliance with law. MCCi takes reasonable and appropriate
measures to maintain the confidentiality and security of Personal
Data and to prevent its unauthorized use or disclosure. To the extent
that MCCi experiences a Security Breach as defined under the State
Data Protection Laws for information generated in connection with
this Agreement or any Order hereto, MCCi shall notify Client in
writing within five (5) business days of discovering such Security
Breach.
11. Warranty
(a) Services Warranty.
MCCi warrants that all Services shall be performed by personnel with
relevant skill sets and familiar with the subject matter for the Order
in a professional, competent and workman -like manner.
MCCi's delivery of a Deliverable to Client shall constitute a
representation by MCCi that it has conducted a review of the
Deliverable and believes it meets the written specifications set forth
in the corresponding Order. Client shall then have the right to
conduct any review of the Deliverable as Client shall deem necessary
or desirable. If Client, in its reasonable discretion, determines that
any submitted Deliverable does not meet the agreed upon
specifications, Client shall have five (5) business days after MCCi's
submission to give written notice to MCCi specifying the deficiencies
in reasonable detail. MCCi shall use reasonable efforts to promptly
cure any such deficiencies. After completing any such cure, MCCi
shall resubmit the Deliverable for review as set forth above.
Notwithstanding the foregoing, if Client fails to reject any Deliverable
within five (5) business days, such Deliverable shall be deemed
accepted.
MCCi does not warrant that the Services or Deliverables will be
uninterrupted or error -free, provided that MCCi shall remain
obligated pursuant to this Section 11. If the Services fail to conform
to the foregoing warranty in any material respect, Client's initial
remedy will be for MCCi, at its expense, to promptly use commercially
reasonable efforts to cure or correct such failure. Upon failure of the
foregoing, Client's remedies, and MCCi's entire liability, as a result of
such failure, shall be subject to the limitations set forth in Section 12
below. The foregoing warranty is expressly conditioned upon (i)
Client providing MCCi with prompt written notice of any claim
thereunder prior to the expiration thereof, which notice must identify
with particularity the non -conformity; (ii) Client's full cooperation with
MCCi in all reasonable respects relating thereto, including, in the case
of modified software, assisting MCCi to locate and reproduce the
non -conformity; and (iii) with respect to any Deliverable, the absence
of any alteration or other modification of such Deliverable by any
person or entity other than MCCi. The Parties acknowledge and agree
that this Agreement relates solely to the performance of services (not
the sale of goods) and, accordingly, will not be governed by the
Uniform Commercial Code of any State having jurisdiction. MCCi also
Last updated: June 25, 2020
does not warrant any third -party products procured on behalf of
Client, and if there are any product warranties provided by the
manufacturer of the product, any remedy should be requested
directly from manufacturer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10. MCCI DOES
NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY.
WHETHER SUCH REPRESENTATION OR WARRANTY BE EXPRESS OR
IMPLIED. INCLUDING ANY WARRANTY OF MERCHANTABILITY.
OUALITY. OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
REPRESENTATION OR WARRANTY FROM COURSE OF DEALING OR
USAGE OF TRADE.
In the event that Client asserts any claim for warranty services
hereunder and such claim relates to any matter that is mutually
determined by the Parties not to be MCCi's responsibility hereunder
(including any problem with Client's computer hardware or software
that was not caused by any Services performed by MCCi), Client shall
pay MCCi for all costs incurred for all evaluation, correction or other
services performed by MCCi relating to such claim on a time and
materials basis at MCCi's then standard billing rates.
(b) General Warranty.
MCCi shall perform the Services in compliance with all applicable
international, federal and state laws and regulations and industry
codes, including but not limited to (i) federal and state anti -kickback
laws and regulations and laws governing payments to and
relationships with healthcare professionals, including 42 U.S.C.
§1320a-7b(b); (ii) federal Food and Drug Administration laws,
regulations and guidance, including the federal Food, Drug and
Cosmetic Act and the Prescription Drug Marketing Act, (iii) federal and
state securities laws, meaning that MCCi agrees that Client may be a
publicly traded company and MCCi shall instruct MCCi Personnel that
federal and state securities laws prohibit the purchase, sale, or
pledge of Client stock while in possession of any material, non-public
information, (iv) the Foreign Corrupt Practices Act of 1977, and the
UK Bribery Act, the 1997 OECD Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, and
(v) international, federal and state privacy and data protection laws,
including, but not limited to, the relevant European Union directives,
Health Insurance Portability and Accountability Act of 1996 and the
Health Information Technology for Economic and Clinical Health Act,
Chapter 93H of The Massachusetts General Laws and its
implementing regulations, 201 CMR 17.00, and Cal. Civ. Code §
1798.80-.84 (collectively, "State Data Protection Laws").
12. Indemnification and Limitation of Liability
(a) Mutual Indemnification.
Each Party ("Indemnifying Party") shall indemnify, defend and hold
the other harmless against any loss, damage or costs (including
reasonable attorneys' fees) in connection with third party claims,
demands, suits, or proceedings ("Claims"):
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MASTER SERVICES AGREEMENT NO. 60972
• For bodily injury or personal property damage arising out of
the indemnifying Party's performance within the scope of its
responsibilities under this Agreement.
• A breach of such the Indemnifying Party's obligations with
respect to confidentiality
• A breach by the Indemnifying Party of applicable laws.
• Caused by negligent acts, omissions or willful misconduct of
the Indemnifying Party.
(b) MCCi Indemnification.
MCCi shall defend, indemnify and hold Client harmless against
Claims made or brought against Client by a third party alleging that
the use of any Deliverable as provided to Client under this Agreement
or any Order hereto and used in accordance with this Agreement and
relevant documentation, infringes any third party's intellectual
property rights. Notwithstanding the foregoing, MCCi shall not be
required to indemnify Client to the extent the alleged infringement:
(x) is based on information or requirements furnished by Client, (y) is
the result of a modification made by a party other than MCCi, or (z)
arises from use of a Deliverable in combination with any other
product or service not provided by MCCi. If Client is enjoined from
using the Deliverable or MCCi reasonably believes that Client will be
enjoined, MCCi shall have the right, at its sole option, to obtain for
Client the right to continue use of the Deliverable or to replace or
modify the Deliverable so that it is no longer infringing. If neither of
the foregoing options is reasonably available to MCCi, then this
Agreement may be terminated at either Party's option and MCCi's
sole liability shall be subject to the limitation of liability provided in
this Section.
(c) Client Indemnification.
If the Services require MCCi to access or use any third party products
provided or used by Client, Client warrants that it shall have all rights
and licenses of third Parties necessary or appropriate for MCCi to
access or use such third party products and agrees to produce
evidence of such rights and licenses upon the reasonable request of
MCCi and to indemnify, hold harmless and defend MCCi from and
against any Claims to the extent arising from MCCi's access to or use
of such third party products.
(d) Indemnification Procedure.
Each indemnified Party shall give the indemnifying Party (a) prompt
written notice of the Claim; (b) sole control of the defense and
settlement of the Claim (provided that the indemnifying Party may
not settle any Claim unless it unconditionally releases the
indemnified Party of all liability); and (c) at indemnifying Party's cost,
all reasonable assistance.
(e) Limitation of Liability.
In no event shall either Party be liable for special, exemplary,
incidental, or consequential damages (including, without limitation,
lost revenues, profits, savings or business) or loss of records or data,
whether or not the possibility of such damages has been disclosed to
such Party in advance or could have been reasonably foreseen by
such Party, and whether in an action based on contract, warranty,
strict liability, tort (including, without limitation, negligence) or
Last updated: June 25, 2020
otherwise. Except for a Party's indemnification obligations, each
Party's maximum aggregate liability for all claims, losses or other
liability arising out of, or connected with, this Agreement, the Services
contemplated hereunder or Client's use of any such Services or
Deliverables, and whether based upon contract, warranty, strict
liability, tort (including, without limitation, negligence), or otherwise,
shall in no case exceed the aggregate amounts paid to MCCi by Client
under the applicable Order, giving rise to such claim during the last
six (6) months. Each Party's entire liability and Client's remedies
under this Agreement shall be subject to the limitations contained in
this Section 12. The limitations on warranty and liability specified in
Sections 11 and 12 hereof will survive and apply even if any limited
remedy herein is found to have failed of its essential purpose.
The Parties acknowledge that the limitation of warranties and
liabilities as set out in this Agreement are an essential basis of this
Agreement and that the prices agreed to be paid by Client for
Services reflect these limitations.
13. Insurance
During the term of this Agreement, MCCi shall carry, at its sole
expense, insurance coverage to include at a minimum the following:
• Workers Compensation: State statutory limits and $1,000,000
employers' liability
• Comprehensive General Liability: $2,000,000 per occurrence
and $4,000,000 in the aggregate
• Professional Liability: $1,000,000 per occurrence and
$3,000,000 in the aggregate
• Errors and Omissions: $1,000,000 per occurrence
• Cyber and Technical Errors and Omissions: $3,000,000 in the
aggregate
14. Notices
All notices, demands and other communications required or
permitted hereunder or in connection herewith shall be in writing
and shall be deemed to have been duly given if delivered (including
by receipt verified electronic transmission) or mailed in the
Continental United States by first class mail, postage prepaid, to a
Party at the following address, or to such other address as such Party
may hereafter specify by notice:
If to MCCi
MCCi, LLC
3717 Apalachee Parkway, Suite 201
Tallahassee, FL 32311
Attn: Legal Department
Email: Ieeal(a mccinnovations.com
15. Miscellaneous
If to Client:
Eagle, ID
660 East Civic Lane
Eagle, ID 83616
Attn: Christine Heimbigner
(a) 3rd Party EULA Provisions.
Client acknowledges that they are responsible for adhering to any 3rd
party End User License Agreements ("EULA"), whether supplied by
MCCi as a convenience or not, for any products procured on behalf
of Client by MCCi.
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MASTER SERVICES AGREEMENT NO. 60972
(b) Use of Open Source Code.
Except as disclosed in the Order, MCCi does not distribute nor
otherwise use any open source or similar software in a manner that
would obligate MCCi to disclose, license, make available or distribute
any of its material proprietary source code as a condition of such
use. For purposes of this Agreement, "Open Source" shall mean any
software or other Intellectual Property that is distributed or made
available as "open source software" or "free software" or is otherwise
publicly distributed or made generally available in source code or
equivalent form under terms that permit modification and
redistribution of such software or Intellectual Property. Open Source
Materials includes software that is licensed under the GNU General
Public License, GNU Lesser General Public License, Mozilla License,
Common Public License, Apache License or BSD License, as well as all
other similar "public" licenses.
(c) Client Software Customizations.
Client may choose to customize their software internally without
MCCi's help. MCCi is not responsible for any damages caused by
Client's customization of the software. MCCi will not be held
responsible for correcting any problems that may occur from these
customizations.
(d) MCCi Software Configuration Services.
Client may elect to contract with MCCi to configure Client's
software. In these situations, Client acknowledges they are
responsible for testing all software configurations and as such,
waives any and all liability to MCCi for any damages that could be
related to these software configurations.
(e) Force Majeure.
If either of the Parties hereto are delayed or prevented from fulfilling
any of its obligations under this Agreement by force majeure, said
Parties shall not be liable under this Agreement for said delay or
failure. "Force Majeure" means any cause beyond the reasonable
control of a Party including, but not limited to, an act of God, an act
or omission of civil or military authorities of a state or nation,
epidemic, pandemic, fire, strike, flood, riot, war, delay of
transportation, or inability due to the aforementioned causes to
obtain necessary labor, materials or facilities.
(f) Audit Rights.
With reasonable notice and at a convenient location, Client will have
the right to audit MCCi's records to verify MCCi's records to confirm
MCCi's billing to Client is correct.
In addition, should any of Client's regulators legally require access to
audit the Services, MCCi will, to the extent legally required by such
regulators, provide access for the same. All results of such audits
shall be MCCi Confidential Information.
Client shall bear all costs associated with audits.
(g) Assignment.
Neither Party may assign or otherwise transfer any of its rights,
duties or obligations under this Agreement without the prior written
consent of the other Party. Either Party, however, without any
Last updated: June 25, 2020
requirement for prior consent by the other, may assign this
Agreement and its rights hereunder to any Party or entity who
succeeds (by purchase, merger, operation of law or otherwise) to all
or substantially all of the capital stock, assets or business of such
Party, if the succeeding party or entity agrees in writing to assume
and be bound by all of the obligations of such Party under this
Agreement. This Agreement shall be binding upon and accrue to the
benefit of the Parties hereto and their respective successors and
permitted assignees.
(h) Modification.
This Agreement may be modified only by a written amendment
executed by duly authorized officers or representatives of both
Parties.
(i) Provisions Severable.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, then such provision
shall be severed from this Agreement and the remaining provisions
will continue in full force.
(j) Dispute Resolution.
Should a dispute arise between MCCi and Client involving their
respective responsibilities, limitations or the working relations
between the Parties under this Agreement or any Order, then the
Parties will make every effort to amicably resolve the dispute. Prior
to entering arbitration as set forth below, the Parties agree that any
dispute will initially be referred to their senior management for
resolution within ten (10) business days of receipt of notice specifying
and asking for the intervention of the Parties' superiors. If the dispute
is still unresolved after such ten (10) business day period, the Parties
agree, at the written request of either Party, to submit the dispute to
a single arbitrator for resolution by binding arbitration under the
rules of the American Arbitration Association, and that any award of
the arbitrator shall be enforceable under any court having
jurisdiction thereof. In any such action, the Parties will bear their own
costs and will share equally in the costs and fees assessed by the
American Arbitration Association for its services.
(k) Interpretation.
The descriptive headings of this Agreement and of any Order under
this Agreement are for convenience only and shall not affect the
construction or interpretation of this Agreement. As used herein,
"include" and its derivatives (including, "e.g.") shall be deemed to
mean "including but not limited to." Each Party acknowledges that
this Agreement has been the subject of active and complete
negotiations, and that this Agreement should not be construed in
favor of or against any Party by reason of the extent to which any
Party or its professional advisers participated in the preparation of
this Agreement.
(I) Publicity.
MCCi may use the name of Client, the existence of this Agreement
and the nature of the associated services provided herein for
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MASTER SERVICES AGREEMENT NO. 60972
marketing purposes, except that such use shall not include any Client
Confidential Information as defined in Section 7 of this Agreement.
(m) Entire Agreement.
This Agreement and all Order(s) attached hereto constitute the
complete and exclusive statement of the agreement between the
Parties and supersedes all proposals, oral or written, and all other
prior or contemporaneous communications between the Parties
relating to the subject matter herein.
Last updated: June 25, 2020
(n) Counterparts.
This Agreement may be executed in several counterparts, each of
which will be deemed an original, and all of which taken together will
constitute one single agreement between the Parties with the same
effect as if all the signatures were upon the same instrument.
(Remainder of Page Intentionally Left Blank; Signature Page Follows)
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MASTER SERVICES AGREEMENT NO. 60972
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the
Effective Date.
MCCi, LLC
E-S
Signed: on
Donny Barstow
Name:
Title: President & CEO
Date:
October 10, 2020
Last updated: June 25, 2020
o Barstow
. GMT
EAGLE, ID ("Client")
a;)Ze..2
Signed:
Name; 1 !v J/OVL I 2 God
Title:ITX)/}'ji
Date: 10%q/1,40a
660 EAST CIVIC LANE
EAGLE, ID 83616
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