Master Services Agreement

This is a previous version of our legal terms. This version is posted for archival reference only. To view our current legal terms, visit Legal.

Master Services Agreement

1. Agreement Structure

This Master Services Agreement (“MSA”) is between Mover Inc. (“Mover”) and the customer referenced in the applicable SOW (“Client”, and collectively with Mover, the “Parties” and each a “Party”). Each statement of work (“SOW”) executed by the Parties under this MSA shall be subject to the standard terms and conditions of this MSA set out below and any additional terms and conditions set forth in any addendum applicable to such SOW, if any (each, an “Addendum”). 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 this MSA and 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 this MSA 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.

2. Statement of Work

Each SOW shall include, at minimum, the following terms: (i) a description of the services to be performed (including deliverables, if any) (“Services”); (ii) the place of performance; (iii) the performance and delivery schedule; (iv) the Fees (as defined below) (if any), including rates; and (v) any additional terms and conditions as may be mutually 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 Fees (if any), Mover shall initiate a change order to the applicable SOW.

3. Acceptance

Unless otherwise set forth in a SOW, all services and deliverables under a SOW shall be subject to inspection and acceptance by Client within 10 business days of delivery by Mover. Any inspection by Client shall be performed in such a manner as not to unduly delay the Services or Mover’s performance of its obligations under the applicable SOW. If Mover does not receive either written acceptance or written notice of noncompliance from Client within such 10 business days, acceptance shall be deemed given. Mover shall have 10 business days to correct the reported noncompliance and to resubmit the item to Client for acceptance.

4. Payment

    4.1 Fixed Price

    Client shall pay Mover the fees (if any) set out in the applicable SOW (“Fees”). To the extent any Fees are payable by Client in an applicable SOW, such Fees will be based on a fixed Fee arrangement (“Fixed Price SOW”), unless otherwise stated in the SOW. Client shall pay for such Fees in accordance with the fixed price (or contingency, if applicable) set forth in the applicable SOW.

    4.2 Payment Terms

    Upon acceptance of the Services in accordance with Section 3 above, Mover shall invoice Client for the Fees (if any) for such Services and Client shall pay all invoices issued under this MSA within 30 days of receipt of such invoice, unless otherwise set forth in a SOW.

5. Termination

This MSA shall commence as the effective date of the first SOW entered into by the Parties (“Effective Date”) and shall continue until terminated in accordance with the provisions of this MSA.

    5.1 Termination for Material Breach

    If either Party breaches any material provision of this MSA, including a material 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.

    5.2 Termination for Convenience

    Unless otherwise set forth in an applicable SOW, either Party may terminate this MSA or a SOW for convenience upon written notice of not less than thirty (30) days prior to the intended date of termination. In the event this MSA terminates prior to the expiration or termination of any SOWs, the terms and conditions of this MSA will continue governing such SOWs.

    5.4 Effects of Termination

    Upon expiration or termination of this MSA or an applicable SOW, Client shall pay Mover the Fees (if any) in full for all Services delivered up to the effective date of termination, and as further set forth in this Section 5.4. For any Fixed Fee SOW, Client acknowledges that such SOW is 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.

    5.5 Return of Documents

    Upon expiration or termination of this MSA or an applicable SOW, unless otherwise required by applicable law, Mover shall return to Client all of Client’s 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’s Confidential Information for which Mover has not granted to Client a separate, specific license for continued use.

    5.6 Survival

    The expiration or termination of this MSA shall not relieve either Party of any obligations or liabilities accrued prior to the termination date. Sections 8 (Confidential and Proprietary Information), 9 (Intellectual Property), 11 (Non-Solicitation of Personnel), 12 (Limitation of Liability), 13 (Defense of Claims), 14 (Disclaimers) and 15 (General Provision) shall survive the expiration or termination of this MSA.

6. Taxes

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.

7. Retainers and Invoices

Non-Refundable retainers may be required by Mover 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 applicable SOW. For SOWs with Fees that are payable on a time and materials basis, 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. Confidential and Proprietary Information

    8.1 Confidential Information

    For the purposes of this MSA, “Confidential Information” means the existence and terms and conditions of this MSA, Mover and any data, information, content, records, or files that Client (or any of its end users) loads, receives through, transmits to, or enters into the Services, including any personal data (“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 MSA; (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.

    8.2 Non-Disclosure

    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. Intellectual Property

    9.1 Work Proceeds

    Except for Mover Intellectual Property (as defined below), all Services and work products delivered by Mover to Client 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. To the extent Mover Intellectual Property is included in the Services and work products, Mover grants Client a non-exclusive, royalty free, perpetual and worldwide license to use such Mover Intellectual Property or other licensable property for Client’s internal business purposes.

    9.2 Mover-Owned Materials and Improvements to Mover-Owned Materials

    “Mover-Owned Materials” means items expressly identified as “Mover-Owned Materials” in a SOW, as well as 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 or the applicable SOW at any time.

    “Improvements to Mover-Owned Material” shall mean any improvements or modifications to Mover-Owned Materials that are developed by Mover in connection with the Services and that do not include or utilize Client’s 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.

    9.3 Client Data

    Client Data will be used or otherwise processed only to provide Client the Services, including purposes compatible with providing those Services. Mover will not use or otherwise process Client Data or derive information from it for any advertising or similar commercial purposes and will not sell Client Data. As between the parties, Client retains all right, title and interest in and to Client Data. Mover acquires no rights in Client Data, other than the rights Client grants to Mover to provide the Services to Client. This paragraph does not affect Mover’s rights in software or services Mover licenses to Client.

    Mover will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process any Client Data. These measures are designed to protect the integrity of Client Data and guard against the unauthorized or unlawful access to, use, and processing of Client Data. Client agrees that Mover may transfer, store, and process Client Data in locations other than Client’s country.

10. Client Responsibilities

In connection with Client’s receipt of the Services, Client shall cooperate with Mover including, without limitation: (i) providing Mover with reasonable access to facilities and timely access to data, information and personnel of 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 stable, fully functional system infrastructure environment that 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. Client acknowledges and agrees that Mover’s performance of its obligations under this MSA or any applicable SOW 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 Client. 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.

11. Non-solicitation of Personnel

During the term of any SOW pursuant to this MSA and for a period of one year thereafter, Client agrees that the personnel or independent contractors (collectively referred to as “Personnel”) of Client who had direct contact in the course of the engagement under such SOW with the other Mover’s Personnel shall not, without the prior written consent from Mover, directly or indirectly employ, solicit, engage or retain the services of Mover’s Personnel.

In the event Client breaches this provision, Client shall be liable to Mover for an amount equal to 30 percent of the annual base compensation of the relevant Personnel in his/her new position. In addition to any other remedies available to Mover under applicable law, Mover shall be entitled to seek injunctive or other equitable relief. This provision shall not restrict the right of Client to solicit or recruit generally in the media.

12. Limitation of Liability

UNLESS OTHERWISE SET FORTH IN AN ADDENDUM OR SOW, A PARTY’S TOTAL LIABILITY AND EXCLUSIVE REMEDY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), UNDER OR RELATED TO ANY SOW UNDER THIS MSA IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE LESSER OF: (I) $1000; AND (II) THE FEES (IF ANY) 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 GROSS NEGLIGENCE) OR OTHERWISE.

13. Defense of Third Party Claims

  1. By Client Client will defend Mover against any claims made by any third party (including any of Client’s end users) arising from or in connection with: (i) Client Data; and (ii) Client’s or its end users’ access or use of the Services in violation of this MSA or other applicable terms. Client must pay the amount of any resulting adverse final judgment (or settlement to which Client consents). This Section 13.1 provides Mover's exclusive remedy for these claims.

  2. By Mover Mover will defend Client against any claims made by an unaffiliated third party arising from or in connection with an allegation that any Service made available by Mover to the Client for a Fee infringes or misappropriates intellectual property rights of the third party. Mover will pay the amount of any resulting adverse final judgment (or settlement to which Mover consents). This Section 13.2 provides Client’s exclusive remedy for these claims. In no event will Mover have any obligations or liability under this Section 13.2 arising from: (i) access or use of the Services in a modified form not authorized by Mover or in combination with materials not furnished or authorized by Mover; (ii) use of the Services in a manner not permitted by or in breach of this MSA; or (iii) any Client Data or any other content, information, or data provided by Client (or its end users), or other third parties.

  3. General Each Party must promptly notify the other in writing of a claim subject to this Section 13. The party invoking its right to protection must: (i) give the other party sole control over the defense or settlement; and (ii) provide reasonable assistance in defending the claim. The party providing the protection will reimburse the other party for reasonable out of pocket expenses that it incurs in providing assistance.

14. Disclaimers

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MOVER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM CLIENT’S USE OF THE SERVICES. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY SERVICES THAT CONNECTS TO MOVER OR ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN CLIENT AND THE THIRD PARTY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS MSA, NEITHER CLIENT NOR MOVER AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR USE, COMPATIBILITY, TITLE, NON-INFRINGEMENT, COMPLETENESS, ACCURACY, QUALITY, INTEGRATION, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CLIENT IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY OF CLIENT’S CONFIDENTIAL INFORMATION STORED BY MOVER IN CONNECTION WITH THE SERVICES.

15. General Provision

    15.1 Relationship of Parties; Independent Contractor

    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.

    15.2 Notices

    All notices required under this MSA shall be in writing and sent to the addresses on the signature page of a SOW to the attention of the signatories. All notices under this MSA shall be deemed given: (i) when delivered by hand; (ii) one day after being sent by commercial overnight courier with written verification of receipt; or (iii) five 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.

    15.3 Severability

    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.

    15.4 No Waiver

    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.

    15.5 Force Majeure

    Except for Client’s obligation to pay the Fees for Services provided hereunder, 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.

    15.6 Governing Law and Venue

    This MSA is governed by and construed in accordance with the laws of the State of Washington, without giving effect to its principles of conflicts of law.

    15.7 Waiver of Jury Trial

    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 Seattle, Washington, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

    15.8 Attorneys Fees

    If any dispute arises between the Parties with respect to the matters covered by MSA 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.

    15.9 Compliance With Laws

    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.

    15.10 Assignment

    Client may not assign or transfer this MSA or any SOW or any rights or obligations under this MSA or any SOW without the written consent of Mover, which shall not be unreasonably withheld. Any other attempt to transfer or assign is void. Mover may assign this MSA or any SOW, in whole or in part, at any time without notice to Client.

Mover Inc.

Master Services Agreement