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Master Services Agreement (20150101)

Master Terms and Conditions

1.          Definitions.

Agreement” means an integrated whole which consists of: (i) this Master Services Agreement; (ii) the particular SOW at issue; and (iii) all amendments to the foregoing, if any.

Confidential Information” means technical or business information including, without limitation, that which relates to or describes research, products, services, customers, employees, business plans or strategies, business relationships, pricing, markets, hardware, software, code, developments, inventions, trade secrets, know-how, processes, designs, drawings, engineering, marketing, or manufacturing activities of one party (“Discloser“) which is either identified or should be reasonably understood to be confidential or proprietary and which Discloser discloses to the receiving party (“Recipient“) verbally, electronically, visually, or in a written or other tangible form.  Confidential Information does not include information that: (a) was known to Recipient prior to receipt from Discloser, as provable by the Recipient’s prior written record; or (b) is or becomes generally known to the public without violation of this Agreement; or (c) was obtained by Recipient in good faith from a third party having a right to disclose the information without an obligation of confidentiality.

Consultant” means a MIPRO employee or contractor that performs Services.

Deliverable(s)” means: (i) software code resulting from the Services; and (ii) those tangible items resulting from Services and which are set forth in the applicable SOW.

MIPRO Rights” means: (i) MIPRO’s intellectual property, including methodologies, templates, concepts, formulas, know­ how, techniques, inventions, developments, processes, improvements, tools, routines, models, displays and manuals, including, without limitation, the selection, coordination and arrangement of the contents thereof; (ii) any derivative works of the works listed in (i); (iii) any new works which would infringe the works listed in (i); and (iv) any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks and other intellectual property associated with the works listed in (i), (ii), and/or (iii).

Planned End Date” if set forth in the SOW, means the anticipated date by which each Consultant will complete work pursuant to the Agreement.  Work may be completed, but is not required to be completed, prior to the Planned End Date.

Services” means those consulting services to be provided by MIPRO to Customer pursuant to a particular SOW.

Software” means the software to which the Services are related, as may be identified in the applicable SOW, and any other software which is used or accessed by MIPRO during the provision of Services.

SOW” means a document: (i) which references this Master Services Agreement and (ii) which is integrated herein; and (iii) which is executed by both MIPRO and Customer; and (iv) pursuant to which the terms regarding the provision of Services are defined.

2.         Services Provided by MIPRO.  MIPRO will provide Customer with Services as specified in an SOW. Each SOW shall: (i) be deemed to have been incorporated into this Master Services Agreement and (ii) create a separate and independent contractual obligation from every other SOW. Customer understands and agrees that MIPRO may subcontract with third parties to perform some or all of the Services.

3.         Fees, Expenses, and Payment.  Customer will: (i) pay MIPRO in accordance with and at the rates set forth in the applicable SOW as adjusted from time to time, and if the rates are not set forth in an SOW, at the MIPRO standard consulting rates in effect at the time the Services are provided; (ii) reimburse MIPRO for all reasonable travel and living expenses incurred in connection with such Services, and (iii) pay MIPRO within thirty (30) calendar days after the date of each invoice. Invoices are payable in U.S. dollars; all payments are non-cancelable, nonrefundable, and non-contingent unless otherwise provided herein. Customer is responsible for all taxes, duties, and customs fees due or owed in relation to Services provided to Customer, excluding taxes based on MIPRO’s income.

4.         Customer Obligations.

4.1       Customer’s Performance.  Customer will perform the following obligations (each a “Customer Obligation“): (i) designate and provide one (1) Customer representative as a point of contact who will be responsible for responding to MIPRO’s questions and issues relating to the Services; (ii) provide such additional sufficient, qualified and knowledgeable personnel as may be reasonably required to: (a) perform each Customer Obligation; (b) make timely decisions necessary to move the Services forward and complete Deliverables; (c) participate in the project and assist MIPRO in rendering the Services; and (d) if applicable, facilitate development, testing and implementation of Deliverables; (iii) secure such permission as may be required from Customer’s employees in order for MIPRO to access and utilize the employee’s personally identifiable information in the performance of MIPRO’s obligations under the Agreement; (iv) implement and comply with regular virus testing and standard backup and data recovery procedures, consistent with industry standards; (v) those obligations set forth in the applicable SOW; and (vi) perform such other reasonable duties incidental to MIPRO’s performance of the Services.

4.2.     Nonperformance of Customer Obligations. Customer acknowledges and agrees that the timely performance of each Customer Obligation and the accuracy of any assumptions set forth in an SOW are material to MIPRO’s ability to provide the Services. In the event Customer does not perform any Customer Obligation in a timely manner, or the assumptions contained in an SOW are not complete or accurate, MIPRO has the right to suspend or terminate those Services that were to be delivered pursuant to a particular SOW.  If suspension or termination occurs, MIPRO shall issue an invoice for Services performed and Customer shall pay such invoice as provided at paragraph 3 herein.

5.         Consultant Planning. Consultants’ performance of Services is subject to the following:

(a)          Customer may request removal of any Consultant at any time on ten (10) business days prior written notice to MIPRO, provided, however, that if removal of a Consultant is requested then Customer agrees to pay MIPRO for the Consultant through the ten (10) day notice period, and all travel and living expenses associated with such Consultant.

(b)         MIPRO will have the right to permanently or temporarily remove, replace, substitute or reassign a Consultant but shall provide reasonable notice to Customer of such change. MIPRO will use reasonable commercial efforts to replace the Consultant with a similarly skilled Consultant.

6.         Change Procedures. The scope of the Services, and any portion thereof, may only be modified pursuant to an amendment to the applicable SOW executed by both parties.

7.         Insurance. The parties will each maintain general liability insurance and worker’s compensation insurance as required by applicable laws.

8.         Nondisclosure Obligations. The parties acknowledge that Confidential Information may be exchanged between them during the course of the parties’ relationship. The Recipient of Confidential Information shall protect Discloser’s Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Recipient utilizes for its own confidential information.  Recipient shall not provide Discloser’s Confidential Information to any third party except with the prior written consent of Discloser, and then only: (i) to the extent necessary to fulfill its obligations under the Agreement; and (ii) to those who have agreed in writing to substantially similar non-disclosure obligations as are contained herein. Notwithstanding anything to the contrary, in no event is such third party entitled to disclose Discloser’s Confidential Information, and any such disclosure shall be considered a breach of this Agreement by Recipient.  Notwithstanding the foregoing, the parties agree that Consultant may have access to Confidential Information without the need for prior approval from Discloser or other pre-access conditions, and Customer and MIPRO further agree that MIPRO may include Customer’s name and logo in its marketing materials and on its web site for purposes of sales presentations and publicity.

9.         Indemnification.

9.1       MIPRO Indemnity. MIPRO will defend and indemnify Customer against any third party claims alleging that a portion of a Deliverable independently developed by MIPRO and for which MIPRO has been paid infringes such third party’s United States patent or copyright rights (“Indemnified Claim“) if: (A) Customer gives MIPRO written notice of such claim not later than seven (7) days after the claim becomes known or is asserted; and (B) information, reasonable assistance, and the sole authority to defend and settle such claim is provided by Customer at the time when an Indemnified Claim is tendered.  If MIPRO becomes aware through Customer or otherwise of an actual or potential Indemnified Claim, MIPRO may, in its sole discretion and at its option and expense: (i) obtain for Customer the right to continue using the Deliverable; (ii) replace or modify the Deliverable so that a claim of infringement is lost or conceded; or (iii) terminate the license for the Deliverable and return a portion of the fees paid by Customer for such part of the Deliverable that is allegedly infringing, prorated over a five (5) year term from the date of delivery of such portion of the Deliverable.  Notwithstanding the foregoing, MIPRO will have no obligation to Customer under this section if: (a) the alleged infringement relates to a Deliverable which was developed pursuant to or embodies information, Confidential Information, specifications, software code, ideas or other material furnished by Customer, its agents or representatives, (b) such claim would have been avoided but for the combination or use of the Deliverable, or portions thereof, with other software or products; or (c) Customer uses the Deliverable other than in accordance with the Agreement or any license agreement which may govern Customer’s use of the Software.  MIPRO’s obligations set forth in this subsection will constitute Customer’s sole and exclusive remedy in relation to any Indemnified Claims and for any actual or alleged infringement or misappropriation of any other intellectual property right arising out of, related to, or arising in connection with the performance or nonperformance of the Services and the development and/or use of the Deliverables.  THE PROVISIONS OF THIS PARAGRAPH STATE THE ENTIRE LIABILITY AND COMPLETE OBLIGATIONS OF MIPRO TOGETHER WITH THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS AND ALL THIRD PARTY CLAIMS WHICH ARISE OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE DEVELOPMENT AND/OR USE OF THE DELIVERABLES.

9.2      Customer Indemnity.  Except only for those third party claims for which MIPRO is obligated to provide indemnification pursuant to paragraph 9.1 herein, Customer will defend and indemnify MIPRO against all costs, fees, expenses, damages and liabilities (including attorney fees and other costs) associated with all third party claims which relate to or arise from MIPRO’s provision of the Services, the Customer’s use of or the Deliverables, or the Agreement.  Without limiting the generality of the foregoing, Customer will defend and indemnify MIPRO against all third party claims which directly or indirectly arise out of or relate to those portions of a Deliverable that contain or were developed through the use of information, Confidential Information, specifications, software code, ideas or other material furnished by Customer, its agents or representatives.  In cases where a claim is tendered to Customer pursuant to this paragraph, MIPRO will give Customer prompt written notice of such claim and information, reasonable assistance, and the sole authority to defend and settle such claim.

10.      Limited Warranty.

10.1    MIPRO Warranty.  MIPRO warrants that the Services will be performed and any resulting Deliverables developed in a manner consistent with generally accepted industry standards. No specific result from provision of the Services is assured or guaranteed. MIPRO DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. For any breach of the warranties contained in this Agreement, Customer’s sole remedy and MIPRO’s sole obligation is, at MIPRO’s sole option, to: (i) re-perform the Services that were not as warranted at no additional charge to Customer; or (ii) refund the amounts paid by Customer for the Services that were not as warranted, provided MIPRO has received written notice from Customer within thirty (30) calendar days after completion of any Services that Customer alleges were not performed consistent with the warranties contained in the Agreement.

10.2   Customer Warranty.  Customer represents and warrants that it has and will maintain all necessary rights to: (i) use the Software; (ii) modify the Software; and (iii) disclose the Software to, and permit modification of the Software by, MIPRO, and Customer shall hold harmless and shall in the manner provided at paragraph 9.2 herein indemnify and defend MIPRO against all claims, costs and actions which arise out of or relate to the use and modification of the Software and derivatives thereto.

11.       Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT ONLY FOR DAMAGES WHICH RELATE TO OR ARISE FROM EITHER:  (I) THE VIOLATIONS OF MIPRO’S INTELLECTUAL OR PROPRIETARY RIGHTS; OR  (II) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS;  (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S LIABILITY FOR DAMAGES UNDER AN AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL EXCEED THE AMOUNT PAID BY CUSTOMER TO MIPRO FOR THE SERVICES OR DELIVERABLE PROVIDED PURSUANT TO THAT PARTICULAR AGREEMENT FROM WHICH THE CLAIM AROSE.  THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK SET FORTH IN THIS SECTION.

12.      Title and Ownership. MIPRO owns and will continue to own all right, title and interest in the MIPRO Rights, excluding any Customer Confidential Information contained therein.  If Customer nevertheless obtains some right, title or interest in the MIPRO Rights, then Customer hereby assigns such right, title or interest to MIPRO, and Customer shall execute such documents as MIPRO may reasonably require to memorialize the assignment.  MIPRO grants to Customer a revocable license to use the Deliverables for Customer’s internal purposes, said license terminable by MIPRO upon Customer’s breach of either: (i) a representation or warranty contained in an Agreement; (ii) any other material term contained in an Agreement, or upon (iii) MIPRO’s election to pursue any of those options which may be exercised in MIPRO’s discretion pursuant to the terms of the Section entitled “MIPRO Indemnity” herein.

13.      Independent Contractor Status. MIPRO is an independent contractor, not an employee of Customer.  Nothing in an Agreement is intended to create or to be construed as the existence of a partnership, joint venture, or agency relationship between the parties.  The Consultant is not an employee of Customer, and Consultant shall not receive Customer- sponsored employee benefits from the Customer.

14.      Notice.  All notices shall be in writing and delivered to the principal address first set forth in this Master Services Agreement.  Notices may be delivered by either certified US Mail, by a nationally-recognized overnight delivery service, by courier, or via transmittal and confirmation by facsimile.  Any notice given hereunder shall be deemed to have been given five (5) business days following the certified receipt if the US Mail service is utilized, or if by legible facsimile when transmission confirmation is received (if verified by another permitted method set forth in this Section), or if by overnight delivery or courier when the notice is delivered.

15.      Termination.  Either party may terminate an SOW or this Master Services Agreement at any time by giving ten (10) business days prior written notice of termination to the other. A termination of this Master Services Agreement also terminates all SOWs which have been incorporated herein.  If Customer terminates an SOW or this Master Services Agreement, Customer shall pay for Consultants through the ten (10) business day notice period, for all travel and living expenses incurred by the Consultants through the date of termination and otherwise incurred as a result of termination, and shall additionally pay MIPRO for all Services performed as of the effective date of termination.  Within fifteen (15) calendar days after a termination of this Master Services Agreement, each Recipient will certify in writing to the other that all copies of Discloser’s Confidential Information in any form, including partial copies, have been destroyed or returned to Discloser, unless explicitly permitted in writing otherwise by Discloser.

16.      Non-Solicitation, Non-Hire, Non-Interference.  Customer agrees that it shall not, for any reason, at any time during the term of an Agreement, and for two (2) years following the termination of all Agreements (“Restricted Period“), either directly or indirectly, divert, solicit, attempt to solicit, influence, or hire any Consultant.  Customer agrees that a breach of this provision could cause severe financial hardships to MIPRO, and that an actual determination of damages that MIPRO would suffer upon Customer’s breach of this provision would be difficult and possibly impossible to accurately determine.  Consequently, if Customer breaches this provision and notwithstanding anything to the contrary contained in an Agreement, Customer shall  pay to MIPRO as liquidated damages two (2) years’ salary of such solicited or hired Consultant.  Customer and MIPRO agree that the liquidated damages set forth in the immediately-preceding sentence represent a fair and reasonable estimate of the damages that MIPRO would actually suffer from a breach of this provision.  If enforcement of the aforesaid remedy becomes necessary, Customer agrees that it shall reimburse MIPRO for all attorney fees and costs incurred in MIPRO’s effort to enforce.  This restriction does not prohibit Customer from employing general recruiting strategies that are not directed specifically towards Consultants, including but not limited to the placement of general advertisements or posting of positions on a web site.

17.      Survival.  The obligations set forth in the following Sections herein: (i) “Fees, Expenses and Payment”, “Customer Obligations”, “Nondisclosure Obligations”, “Indemnification”, “Limited Warranty”, “Limitation of Liability”, “Title and Ownership”, “Notice”, “Non-Solicitation, Non-Hire, Non-Interference”, and “General Provisions” will survive termination of each Agreement.

18.      General Provisions.  Each Agreement is made in and will be governed by the laws of the State of Michigan, without regard to its choice of law principles, and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal or state laws or regulations.  The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.  Oakland County, Michigan if in state court, and in the Eastern District of Michigan if in Federal Court, shall have exclusive jurisdiction to adjudicate any dispute which arises out of an Agreement or which relates to any claims between the parties to an Agreement.  The section headings herein are provided for convenience only and have no substantive effect on the construction of an Agreement.  Neither party will be liable for any failure to perform due to causes beyond its reasonable control.  If any provision of an Agreement is held to be unenforceable, the Agreement will be construed without such provision.  The failure by a party to exercise or enforce any right hereunder will not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future.  No action, regardless of form, arising out of, relating to or in any way connected with the Agreement, Services or Deliverables provided or to be provided by MIPRO may be brought by either party more than one (1) year after the cause of action first accrued, regardless of whether said claim was known or unknown at the time when the claim accrued.  An Agreement constitutes the entire agreement between the parties concerning the Services and Deliverables and may not be modified by custom and usage.  An Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between the parties with respect to the same subject matter, except for confidentiality agreements between the parties, in which case the terms that best protect the Discloser shall take precedence.  Unless expressly provided otherwise herein, no purchase order or other document that purports to modify or supplement this Master Services Agreement, an Agreement or an SOW will add to or vary the terms thereof, and all proposed variations or additions (whether submitted by MIPRO or Customer) are deemed material and objected to unless otherwise agreed to in a writing signed by both parties.  An Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties, unless expressly provided otherwise herein. Transmitted copies are considered documents equivalent to original documents.  Each party has had an adequate opportunity to review the terms of this Master Services Agreement and each SOW with its respective counsel and to participate in the drafting of all documents; consequently, neither party shall be deemed to have drafted any particular provision in any Agreement.