Last modified: March 28th, 2018
This document is typically applied to our managed customers; it is only applicable if you have a signed Statement of Work with Mover that references this document.
Master Services Agreement
- Agreement Structure.
- Statement of Work.
Each SOW executed by the Parties under this MSA shall be subject to these Standard Terms and Conditions and the additional terms and conditions set forth in the Addendum applicable to such SOW, if any. When fully executed by authorized signatories of the Parties, each SOW shall incorporate this MSA by reference, and shall form a part of, this MSA. The provisions of the various MSA documents shall, to the extent possible, be interpreted so as to supplement each other and avoid any conflict between them.
In the event of a conflict between the terms and conditions of these Standard Terms and Conditions and/or the Addendum applicable to a SOW, if any, on the one hand and the terms and conditions of a SOW on the other hand, the terms and conditions of these Standard Terms and Conditions and the Addendum applicable to such SOW, if any, shall control, unless explicitly stated otherwise in the SOW, and in that case the conflicting terms and conditions in such SOW shall apply only to that SOW.
Each SOW shall include, at minimum, the following terms: (a) description of the services to be performed (including deliverables, if any) (the “Services”); (b) place of performance; (c) performance and delivery schedule; (d) SOW price, including rates; (e) additional terms and conditions as may be agreed to by the Parties. Client or Mover may request changes in the SOW. Upon agreement between the Parties as to the change and associated price, Mover shall initiate a change order to the applicable SOW.
Unless otherwise set forth in a SOW, all services and deliverables under an SOW shall be subject to inspection and acceptance by Client within ten (10) business days of delivery by Mover. Any inspection by Client shall be performed in such a manner as not to unduly delay the work. If Mover does not receive either written acceptance or written notice of noncompliance from Client within such ten (10) business days, acceptance shall be deemed given. Mover shall have ten (10) business days to correct the reported noncompliance and to resubmit the item to Client.
- 4.1 Fixed Price.
- 4.2 Payment Terms.
All Mover SOWs are based on a fixed fee arrangement (“Fixed Price SOW”), unless otherwise stated in the SOW. Client shall pay in accordance with the fixed price (and/or contingency, if applicable) set forth in the SOW.
Upon acceptance of the Services in accordance with Section 3 above, Mover shall invoice Client and Client shall pay all invoices issued under this MSA within thirty (30) days of receipt of such invoice unless otherwise set forth in a SOW.
This MSA shall commence as of the Effective Date and shall continue until terminated by either Party upon written notice received by the other Party not less than thirty (30) days prior to the intended date of termination.
- 5.1 Termination for Material Breach.
- 5.2 Effects of Termination.
- 5.3 Return of Documents.
- 5.4 Survival
If either Party breaches any provision of this MSA, including a provision of any SOW, the non-breaching Party may, upon providing written notice of such breach, terminate this MSA in its entirety or the specific SOW that was breached, if the breach is not cured within 30 days following such notice, unless a shorter cure period is otherwise set forth in the applicable SOW.
Upon expiration or termination of this MSA or an SOW, Client shall pay Mover in full for all services delivered. Client acknowledges that the Fixed Fee SOW and the like are based on a minimum term. If the SOW is for a fixed fee and the MSA or any SOW is terminated due to Client’s breach thereof, Client shall pay Mover the full amount of any outstanding fixed fee under the applicable SOW.
Upon termination of this MSA or SOW, Mover shall return to Client all Client Confidential Information for which Client has not granted to Mover a separate, specific license for continued use, and Client shall return to Mover all Mover Confidential Information for which Mover has not granted to Client a separate, specific license for continued use.
Termination of this Agreement shall not relieve either Party of any obligations or liabilities accrued prior to the termination date. Sections 8 (Confidential and Proprietary Information), 9 (Rights in Data and Inventions), 11 (Non-Solicitation), 12 (Limitation of Liability), 13 (Indemnification), and 14 (General Provision) shall survive termination of this MSA.
In the event any taxes are payable or paid based upon this MSA or applicable SOW, other than corporate franchise taxes and taxes based on Mover’s net income, such amount shall be added to the charges due to Mover and shall be paid by Client to Mover. Notwithstanding, Client shall not be required to pay those taxes from which Client is legally exempt.
Non-Refundable retainers may be required and will be explicitly stated by the SOW (“Retainer”). The Retainer is to be paid in an amount and on the date stated in the SOW. For Time and Material SOWs, Mover shall submit invoices semi-monthly (on the first and fifteenth of each month) for services rendered during the preceding period, unless otherwise stated in the SOW. For Fixed Price SOWs, Mover shall submit invoices in accordance with the payment schedule contained in the SOW.
- 8.1 Confidential Information.
- 8.2 Non-Disclosure.
For the purposes of this MSA, “Confidential Information” means the existence and terms and conditions of this MSA, Mover and Client data and all non-public information about the disclosing party’s (or its suppliers) business or activities that a reasonable person should know is proprietary and confidential, which shall include all business, financial, technical and other information of either party, whether or not it is marked or designated by such party as “confidential or “proprietary” at the time of disclosure. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party rightfully knew prior to receiving such information from the disclosing party without restriction; or (iv) the receiving party develops independent of any information originating from the disclosing party.
Each Party agrees that: (i) it will not disclose to any third party any Confidential Information disclosed to it by the other party except as expressly permitted in this MSA; (ii) it will not use any Confidential Information disclosed to it by the other party except as necessary to perform its obligations under this MSA; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than with reasonable care using the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to promptly notify the disclosing party so that it may request confidential treatment or a protective order before such disclosure; or on a “need-to-know” basis under an obligation of confidentiality to its legal counsel and accountants.
- 9.1 Work Proceeds.
- 9.2 Mover-Owned Materials and Improvements to Mover-Owned Materials.
Except for Mover Intellectual Property (as defined below), all Services and work products delivered pursuant to this MSA, including but not limited to, computer programs, inventions, material able to be patented, trademarked or copyrighted, reports, documentation, designs, flow charts, and drawings, and any manifestations thereof ("Work Proceeds"), shall be deemed works made for hire as defined by the U.S. Copyright Act, Title 17, U.S. C. 101. Client, upon payment of all amounts owed for Work Proceeds described in the SOW, shall own all right, title and interest to said Work Proceeds, and may use such Work Proceeds for its own use with no obligation or accounting to Mover except as may be agreed to in a SOW. Any Mover Intellectual Property (as defined below), or other licensable property included in the Services and work products performed pursuant to this MSA shall be separately identified in the SOW by Mover, and Client shall have the right to use such components or products.
“Mover-Owned Materials” means items expressly identified as “Mover-Owned Materials” in a SOW and all intellectual property owned, developed, or first reduced to practice by Mover or Mover’s authorized subcontractor(s) prior to the Effective Date of this MSA (or the pertinent, related SOW), or developed independently of this MSA at any time.
“Improvements to Mover-Owned Material” shall mean any improvements or modifications to Mover-Owned Materials that are developed by Mover as a result of the Services and that do not include or utilize Client Confidential Information. Improvements to Mover-Owned Materials are the sole and exclusive property of Mover. Except as otherwise expressly provided in a SOW, this MSA does not affect ownership, right, or title to any Mover-Owned Materials or Improvements to Mover-Owned Materials (collectively “Mover Intellectual Property”), which shall be owned by Mover.
The Client shall cooperate with Mover including, without limitation, (i) providing Mover with reasonable facilities and timely access to data, information and personnel of the Client; (ii) providing experienced and qualified personnel having appropriate skills to perform their assigned tasks and duties in a competent and timely fashion; (iii) providing a stable, fully functional system infrastructure environment which will support the Services and allow Mover and Client to work productively; and (iv) promptly notifying Mover of any issues, concerns or disputes with respect to the Services.
The Client shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of data and information provided to Mover for purposes of the performance of the Services. The Client acknowledges and agrees that Mover’s performance is dependent upon the timely and effective satisfaction of the Client’s responsibilities hereunder and timely decisions and approvals of the Client in connection with the Services. Mover shall be entitled to rely on all decisions and approvals of the Client. The Client shall be solely responsible for, among other things: (i) making all management decisions and performing all management functions; (ii) designating a competent management member to oversee the Services; (iii) evaluating the adequacy and results of the Services; and (iv) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.
During the term of any SOW pursuant to this MSA and for a period of one (1) year thereafter, Client and Mover agree that the personnel and/or independent contractors (collectively referred to as “Personnel”) of either Party who had direct contact in the course of that engagement with the other Party’s Personnel shall not, without prior written consent from the other Party, directly or indirectly employ, solicit, engage or retain the services of such Personnel.
In the event a Party breaches this provision, the breaching Party shall be liable to the aggrieved Party for an amount equal to thirty percent (30%) of the annual base compensation of the relevant Personnel in his/her new position. Although such payment shall be the aggrieved Party’s exclusive means of monetary recovery from the breaching Party for breach of this provision, the aggrieved Party shall be entitled to seek injunctive or other equitable relief. This provision shall not restrict the right of either Party to solicit or recruit generally in the media.
UNLESS OTHERWISE SET FORTH IN AN ADDENDUM OR SOW, A PARTY’S TOTAL LIABILITY AND EXCLUSIVE REMEDY UNDER OR RELATED TO ANY SOW UNDER THIS MSA IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY CLIENT TO MOVER UNDER SUCH SOW GIVING RISE TO SUCH CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS MSA ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
- 13.1 Indemnification by Mover.
- 13.2 Indemnification by Client.
- 13.3 Notice of Indemnity.
Mover shall indemnify, defend and hold Client harmless from and against any claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Client by a third party arising from any willful or negligent act by Mover. However, the foregoing does not apply to the extent such Claim results from Client’s negligence or willful misconduct.
Client shall indemnify, defend and hold Mover harmless from and against all claims, losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Mover by a third party arising out of or related to the use of the Services by the Client or Client’s breach of this MSA. However, the foregoing does not apply to the extent such Claim results from Mover’s negligence or willful misconduct.
As a condition to the foregoing indemnity obligations, the indemnified party shall provide the indemnifying party with prompt notice of any claim, suit or proceeding for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the indemnifying party in connection with any such claim, suit or proceeding. The indemnifying party shall be entitled to control the handling of any such claim, suit or proceeding and to defend or settle any such claim, suit or proceeding in its sole discretion, with counsel of its own choosing.
- 14.1 Relationship of Parties; Independent Contractor.
- 14.2 Notices.
- 14.3 Severability.
- 14.4 No Waiver.
- 14.5 Force Majeure.
- 14.6 Governing Law and Venue.
- 14.7 Waiver of Jury Trial.
- 14.8 Attorneys Fees.
- 14.9 Compliance With Laws.
- 14.10 Assignment.
Client and Mover agree that the other Party is, and shall remain, an independent contractor. Nothing in this MSA shall be construed to create or imply that either Party is an employee of the other Party. The Parties acknowledge that this is a business relationship based on the express provisions of this MSA and no partnership, joint venture, agency or fiduciary relationship is intended or created by this MSA. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct or supervise the daily affairs of the other Party, and neither Party shall act, represent or hold itself out as such. The rights, duties, obligations and liabilities of the Parties shall be several and not joint, each Party being individually responsible only for its obligations as set forth in this MSA. Notwithstanding any use of the term “partner” in this MSA or any or SOW, the Parties do not intend to create any legal relationship or partnership between each other, and neither Party will assert to any third party or otherwise claim that such a legal relationship exists between each other.
All notices required under this MSA shall be sent to the addresses on the signature page of this MSA, and, if the notice relates to a specific SOW, to any additional notice addresses listed in such SOW, to the attention of the signatories. All notices under this MSA shall be deemed given: (i) when delivered by hand; (ii) 1 day after being sent by commercial overnight courier with written verification of receipt; or (iii) 5 days after being sent by registered or certified mail, return receipt requested, postage prepaid. Either Party may from time to time change its address for notification purposes by giving the other Party written notice of the new address and the date upon which it will become effective. Notwithstanding the foregoing, notices regarding changes in pricing, policies or programs may be communicated by e-mail.
If any provision, or part thereof, of this MSA becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this MSA. The validity, legality and enforceability of the remaining provisions of this MSA shall not in any way be affected or impaired.
Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under this MSA shall constitute a subsequent or continuing waiver of such right or any other rights under this MSA.
Except for Client’s obligation to pay the fees for Services provided, neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components or equipment); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
This MSA is governed by and construed in accordance with the laws of the Province of Alberta, without giving effect to its principles of conflicts of law.
THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM RELATING TO THIS ENGAGEMENT. Any controversy or claim arising out of or relating to this MSA or applicable SOW, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration hearing shall take place in Edmonton, Alberta, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
If any dispute arises between the Parties with respect to the matters covered by MSA and/or the applicable SOW, which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, arbitration costs and fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
Each Party agrees to comply with the provisions of applicable Federal, State, and County, and local laws, ordinances, regulation and codes in the performance of its duties under this MSA, including the Fair Labor Standards Act and the Occupational Safety and Health Act. While on the other Party’s premises, each shall comply with the other Party’s then-current reasonable plant rules and regulations.
Client may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Mover, which shall not be unreasonably withheld. Mover may not assign this Agreement without providing notice to Client. However, a Party may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
Master Services Agreement