MSPA Service Agreement

MSPA Service Agreement

This Master Services and Professional Agreement (the "Agreement") is entered into as of between Client Name: with principal place of business at , and Service Provider Name: with principal place of business at .

RECITALS

WHEREAS, Client desires to retain Provider to perform the services described in one or more Statements of Work under the terms and conditions set forth in this Agreement; and

WHEREAS, Provider represents that it has the experience and capability to perform such services and is willing to perform them for Client in accordance with this Agreement; and

WHEREAS, the parties desire to set forth the terms and conditions governing the engagement, performance, and delivery of services and related deliverables;

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 "Services". Services means the professional and managed services, consulting, implementation, maintenance and support services described in one or more Statements of Work executed under this Agreement.

1.2 "Statement of Work" or "SOW". A document executed by the parties describing the Services, schedule, fees, deliverables, and any project-specific terms. Each SOW is incorporated into and governed by this Agreement.

2. SCOPE OF SERVICES

Provider shall perform the Services described in each executed SOW in a professional and workmanlike manner consistent with industry standards. Provider will assign personnel with the requisite skill, experience and qualifications to perform the Services.

3. TERM

This Agreement commences on the Effective Date and continues for an initial term of unless earlier terminated in accordance with Section 11. Each SOW may specify a different term and end date which shall be controlling for that SOW.

4. FEES AND PAYMENT

4.1 Fees. Client shall pay Provider the fees set forth in each SOW. Fees shall be billed in accordance with the invoicing schedule in the applicable SOW.

4.2 Invoicing. Provider shall submit itemized invoices to Client. Client shall pay undisputed amounts within the Payment Terms. Disputed amounts shall be subject to good faith resolution and will not excuse timely payment of undisputed amounts.

5. CHANGE ORDERS

Any material change in scope, schedule or price will be documented in a written change order signed by authorized representatives of both parties. Provider is not obligated to perform changes until a change order is executed.

6. CONFIDENTIALITY

6.1 Confidential Information. Each party (the "Disclosing Party") may disclose to the other party (the "Receiving Party") certain confidential information. The Receiving Party shall protect Confidential Information with the same standard of care it uses to protect its own confidential information, but in no event less than reasonable care.

6.2 Exceptions. Confidential Information does not include information that is (a) publicly available without breach by the Receiving Party; (b) already known by the Receiving Party at time of disclosure; (c) rightfully received from a third party without restriction; or (d) independently developed without use of the Disclosing Party's Confidential Information.

7. INTELLECTUAL PROPERTY

7.1 Background IP. Each party retains all right, title and interest in its pre-existing intellectual property and tools. Nothing in this Agreement transfers ownership of Background IP.

7.2 Deliverables and License. Subject to full payment, Provider grants Client a non-exclusive, non-transferable license to use deliverables created for Client under an SOW for Client's internal business purposes. Provider retains ownership of Provider's underlying tools, methodologies, and general know-how embedded in deliverables.

8. WARRANTIES; DISCLAIMER

8.1 Limited Warranty. Provider warrants that Services will be performed in a professional manner consistent with prevailing industry standards. If Client notifies Provider of nonconforming Services within thirty (30) days, Provider will, at its option, reperform the Services or refund the fees paid for the deficient Services.

8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO PROVIDER UNDER THE APPLICABLE SOW IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

10. INDEMNIFICATION

10.1 By Provider. Provider will defend, indemnify and hold Client harmless from third-party claims that Provider's Services or deliverables, as delivered, infringe a valid patent, copyright or trade secret, provided Client gives prompt notice and sole control of defense to Provider.

10.2 By Client. Client will defend, indemnify and hold Provider harmless from third-party claims arising from Client's breach of representations, misuse of deliverables, or Client-provided materials.

11. INSURANCE

Provider shall maintain insurance customary for the services provided, including commercial general liability and professional liability/errors & omissions coverage in amounts reasonably acceptable to Client.

12. TERMINATION

12.1 For Cause. Either party may terminate this Agreement or any SOW for material breach by the other party if such breach is not cured within thirty (30) days after written notice specifying the breach.

12.2 For Convenience. Either party may terminate an SOW for convenience upon sixty (60) days' prior written notice, in which event Provider shall be entitled to payment for Services performed and approved expenses incurred through the effective date of termination.

13. TRANSITION AND DATA

Upon termination, Provider will, at Client's direction and subject to payment of reasonable fees, provide customary transition services to transfer work product and operational information to Client or a replacement provider.

14. NOTICES

All notices required or permitted hereunder shall be in writing and deemed given when delivered personally, by nationally recognized overnight courier, or by certified mail to the addresses set forth below or to such other address as a party designates by notice.

15. AMENDMENTS, WAIVER, COUNTERPARTS

Any amendment or modification of this Agreement must be in writing and signed by authorized representatives of both parties. No failure or delay in exercising any right shall operate as a waiver. This Agreement may be executed in counterparts and delivered by electronic transmission.

16. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

16.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state specified below without regard to its conflicts of law principles.

16.2 Entire Agreement. This Agreement, together with all executed SOWs, constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements and understandings.

16.3 Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect.

17. MISCELLANEOUS

The parties represent that they have the authority to enter into this Agreement. Neither party may assign this Agreement without the prior written consent of the other, except to an affiliate or in connection with a merger or sale of substantially all assets.

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