MASTER SERVICE AGREEMENT
THIS MASTER SERVICE AGREEMENT ("Agreement) is made and entered
into on April 13, 200, executed by and between E-Connect with an
address for the purpose of this agreement at 0000 Xxx Xxxxxxxx
Xxxxxx Xxxxx 000, Xxx Xxxxx, XX 00000 ("CLIENT) and Real
Solutions ("REAL") with an address for the purpose of this
Agreement at 00000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx Xxxxx, XX
00000.
Whereas, CLIENT desires REAL from time to time to provide
to CLIENT certain tasks and services (the "SERVICES) more
particularly described on an executed statement of work which
shall be entered into between REAL and CLIENT. A form of the
statement of work is attached hereto as Exhibit A ("Statement of
Work"). Each Statement of Work shall incorporate all of the
terms and conditions of this agreement and shall constitute a
separate and distinct agreement hereunder;
Whereas, REAL desires to provide those Services in
accordance with the Statement of Work to CLIENT;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follow:
1. OBLIGATIONS OF REAL.
1.1 REAL will perform the Services set forth in the Statement
of Work. The Statement of Work shall include but not be limited
to a description of the nature, scope and an estimated schedule
for the services to be provided, the time within which the
Services will be provided and all other terms and conditions
relating to the Services as agreed to by the parties.
1.2 Client may request changes in the scope of work or
deliverables specified in the Statement of Work. Upon agreement
between the parties as to the change and associated price, REAL
shall initiate a change order to the Statement of Work which
must be executed by both parties ("Change Order").
2. OBLIGATIONS OF CLIENT.
2.1 CLIENT will perform its obligations as set fourth in the
Statement of Work. The Statement of Work will set fourth the
schedule and/or rate of pay due REAL. CLIENT will make payment
in accordance with the terms and conditions of the Statement of
Work.
2.2 CLIENT will identify to REAL a point of contact to which
REAL shall report for purposes of day-to-day issues which may
arise.
3. REIMBURSEMENT OF EXPENSES AND PAYMENT.
3.1 CLIENT will reimburse REAL for all reasonable business
expenses including, but not limited to travel and out of pocket
expenses incurred by REAL. All extraordinary out-of-pocket
expenses incurred by REAL shall require prior written approval
by CLIENT before reimbursement.
4. INVOICING.
4.1 REAL will invoice CLIENT for all Services provided
hereunder.
4.2 Invoices for Services, travel time and expenses shall be
paid net thirty (30) days from date of invoice. Interest on any
amount that is past due shall accrue on the outstanding balance
at the lesser of 1.5% per month or the maximum rate allowed by
law, and shall be paid by CLIENT upon receipt of REAL's Invoice
therefor.
4.3 CLIENT shall pay all sales and other taxes, however
designated, (except taxes based upon the income of REAL) which
are levied or imposed by reason of the transactions contemplated
herein.
4.4 REAL will keep accurate records pertaining to the
provisions of Services under a Statement of Work for at least
two (2) years from the completion of all such Services. All
such records will be available for the inspection by CLIENT,
upon CLIENT's reasonable request and at a mutually agreeable
time at REAL's principal place of business.
5. PROPRIETARY INFORMATION AND NONDISCLOSURE.
5.1 Either party may be provided or have access to information
which is "Confidential" and "Proprietary" to the other
("Proprietary Information"). Proprietary Information shall
include, but not to be limited to: that written or oral
technical, financial, commercial know how or other information
stated by the disclosing party as Proprietary Information.
5.1.1 Information which is previously known by the receiving
party at the time of receipt from the disclosing party which is
not subjected to any other nondisclosure agreement between the
parties.
5.1.2 Information which is now, or which hereafter becomes,
generally known through no fault of the receiving party;
5.1.3 Information which is otherwise lawfully developed by
the receiving party, or lawfully acquired from a third party.
"Lawfully developed" shall mean information which is
independently developed as shown by the books and records of one
of the parties. "Lawfully acquired" shall mean acquired from a
third party without restrictions on further disclosure when the
third party had the right to provide the information to the
party receiving the information;
5.1.4 Information which is requires to be disclosed by law,
rule regulation appropriate court order or judicial decree.
5.2 Neither party shall disclose, copy, reproduce, sell, assign
any Proprietary Information of the other, either in whole or in
part, to any third party without the other party's prior written
consent. Upon termination of this Agreement, and upon request,
both parties shall maintain and not alter or remove any
trademark, notice of proprietary rights or copy right or other
identification which indicates the other party's ownership
interests in any Proprietary Information.
5.3 Each Party shall notify the other party promptly and in
writing of any unauthorized knowledge, possession, distribution,
or use of any Proprietary Information or any party thereof. Any
violation or threatened violation of this Section, shall entitle
the aggrieved party to injunctive relief in addition to any
other legal or equitable rights or remedies.
5.4 The obligations of this Section shall survive termination
of this Agreement.
6. REPRESENTATIONS, WARRANTIES AND LIMITATION OF LIABILITY.
6.1 REAL warrants and represents that it shall comply with all
applicable federal, state and local laws, regulations and rules
and provide Services in a good and workmanlike manner, in
accordance with generally accepted practices and procedures.
Unless otherwise specified in the Statement of Work, upon
completion of the specifications or the Statement of Work ,
REAL's provisions of the Services will be deemed accepted by
Client. Upon request, CLIENT shall sign a project acceptance
document, which is attached hereto as Exhibit B.
6.2 EXCEPT AS PROVIDED ABOVE, REAL MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OT IMPLIED, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABLITY OR FITTNESS
FOR A PARTICULAR PURPOSE AS TO THOSE SERVICES PROVIDED
HEREUNDER.
6.3 REAL'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT,
TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF FEES
ACTUALLY PAID TO REAL DURING THE TERM OF THE APPLICABLE
STATEMENT OF WORK.
6.4 REAL SHALL HAVE NO LIABILITY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN
IF REAL HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.
7. RELATIONSHIP OF THE PARTIES.
7.1 REAL exclusively retains all rights to any and all
intellectual property created by REAL (and its affiliates and
employees) in the performance of Services under this Agreement
and any Statement of Work. REAL grants Client a non-exclusive
license to use and modify all intellectual property created by
REAL in performance of the Services during the term of this
Agreement and any Statement of Work. Except as set forth above,
nothing in this Agreement or any Statement of Work shall
preclude REAL from developing, using or marketing programs or
other materials that may be competitive with that prepared for
CLIENT hereunder.
8. RELATIONSHIP OF THE PARTIES.
8.1 The relationship of REAL and CLIENT is one of an
independent contractor and will not be deemed for any purposes
to be one of an employee, agent, joint venturer, principal or
partner of the other, nor shall either party have any right or
authority to assume or create any obligations on behalf of or in
the name of the other or to otherwise act on behalf of the
other.
8.2 Both Parties shall obtain reasonable and customary
insurance to cover its liability at law or under this agreement
and any Statement of Work. At the other parties written request
both parties shall be added as named insured in respect of
losses or claims referred herein. Each party shall be entitled
to receive a certificate of insurance providing evidence of such
coverage. Such insurance shall remain in full force throughout
the term of this Agreement and shall contain a provision that it
cannot be materially altered, amended or cancelled except upon
30 days prior written notice to the other party.
8.3 Both REAL and Client are free to enter into similar
agreements with others, set their own prices, and conduct their
business in whatever way they chose, provided that there is no
interference with performing the obligations under this
agreement.
9. TERMS AND TERMINATION.
9.1 This Agreement will commence on the date set forth above
and shall remain in full force, unless earlier terminated by
either party in accordance with the terms and conditions of this
Agreement and provided there are no outstanding Statement of
Work(s).
9.2 Upon Termination, CLIENT will pay REAL those amounts due to
REAL. CLIENT will also reimburse those expenses of REAL which
were incurred prior to termination.
10. NON-SOLICITATION OF EMPLOYEES
10.1 Neither party shall directly or indirectly solicit, offer
employment, employ or retain as a consultant any employee,
consultant, sub-contractor or other agent of the other without
the express written provision of the other. This provision shall
remain in effect for a period of one (1) year from the last date
of direct work by such employee in activities related to this
Agreement.
11. NOTICES
11.1 All notices and correspondence pertaining to this Agreement
will be delivered by hand or certified mail, return receipt
requested and postage prepaid, or by a nationally recognized
courier service and be addressed to the addresses set forth
above. Notice will be effective only upon receipt by the party
being served, except that notice shall be deemed received 72
hours after posting by the United States Post Office, by the
method described above. Each party is responsible for informing
the other of any changes in his or her address by sending proper
notice.
12. INDEMNIFICATION
12.1 REAL shall defend, indemnify and hold Client, its agents,
employees, affiliates, officers and directors, harmless from and
against any claim raised by a third party, proximately caused by
REAL's performance under this Agreement and any Statement of
Work provided (1) Client notifies REAL promptly in writing of
any such claim, (2) Client provides reasonable assistance in
defending the action, and, (3) REAL has the sole right to
control the defense or sufficient of such suit provided,
however, REAL shall not enter into a settlement agreement or
judicial decree without Client's consent which consent shall not
be unreasonably withheld.
12.2 Client shall defend, indemnify and hold REAL, its agents,
employees, affiliates, officers and directors, harmless from and
against any claim, proximately caused by Client's performance
under this Agreement and any Statement of Work provided (1) REAL
notifies Client promptly in writing of any such claim, (2) REAL
provides reasonable assistance in defending the action, and, (3)
Client has the sole right to control the defense or sufficient
of such suit provided, however, Client shall not enter into a
settlement agreement or judicial decree without REAL's consent
which consent shall not be unreasonably withheld.
13. GENERAL PROVISIONS
13.1 FORCE MAJEURE. Neither party shall be responsible for
failure to fulfill its obligations hereunder due to cause beyond
its control, including, without limitations, acts of God, states
of war, insurrection and acts of governments, which cause an
impossibility of performance, whether temporary or otherwise.
13.2 GOVERNING LAW/VENUE. This Agreement shall be deemed to have
been entered into in the County of Los Angeles, State of
California, on the date accepted by REAL. All questions
concerning the validity, interpretation or performance of any
term, provision, right or obligation of the parties hereto, on
any legal theory, shall be instituted and prosecuted in Los
Angeles County in accordance with the laws of the State of
California. CLIENT expressly submits itself to the personal
jurisdiction of the appropriate Court in Los Angeles County on
any such controversy and waives any rights to change of venue.
13.3 DISPUTE RESOLUTION. In the event of a dispute between the
parties related to this Agreement or a deliverable listed in a
specific Statement of Work under this Agreement, the parties
shall attempt to resolve the dispute between the operations
personnel of the parties. Failing resolution at that level, the
parties shall refer the dispute to a management level who will
meet, by phone or in person, to resolve the dispute. If after
(60) days following referral of the dispute to management the
dispute remains unsettled, either party may refer the dispute to
arbitration. Any such arbitration shall be held in Los Angeles,
California before a single arbitrator within thirty (30) days of
referral of the matter to arbitration. Arbitration shall be held
as promptly as possible thereafter. The parties shall have a
right to present a written memorandum to the Arbitrator
following the proceedings. The Arbitrator shall render his/her
decision within sixty (60) days of the arbitration hearing. The
decision of the Arbitrator shall be final and binding up the
parties and shall be enforceable in any court.
13.4 SEVERABILITY If any of the provisions of this Agreement are
held by a court of competent jurisdiction to be unenforceable or
invalid, then such provisions will be ineffective to the extent
of the courts ruling. All remaining portions of the Agreement
shall remain in full force and effect.
13.5 PARAGRAPH AND HEADINGS AND INTERPRETAITON. The paragraph
headings contained herein are for reference only and will not be
considered substantive parts of this Agreement. The use of the
singular or plural shall include the other form. Similarly, when
applicable, a reference to one gender shall include the other.
13.6 NO WAIVER. Upon a party's breach or default hereunder, the
other party's failure, whether single or repeated, to exercise a
right hereunder shall not be deemed to be a waiver of that right
as to any future breach or default.
13.7 EXCLUSIVE REMEDIES. Client's remedies in this Agreement
are exclusive.
13.8 ASSIGNMENT. This Agreement may not be assigned, sublicensed
or otherwise transferred by Client without the prior written
consent of REAL which consent shall not be unreasonably
withheld.
13.9 TRADEMARKS Neither party shall, at any time, utilize the
other's name or nay trademark(s), service xxxx(s) or trade
name(s) in any advertising or publicity without the prior
written consent of the other.
13.10 ENTIRE AGREEMENT. This Agreement, together with its
attached Exhibits, constitutes the entire agreement between
parties with respect to the subject matter hereof, and
supersedes any and all prior expressions, whether written or
oral. No waivers, alterations, or modifications of this
Agreement may be made unless in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date indicated below.
CLIENTREAL
E-Connect REAL Solutions
By:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxx
Name: Xxxxxx X. Xxxxxx Name: Xxxx Xxxxx
Title: Chairman/CEO Title: General Manager
Date: April 14, 2000 Date: April 13, 2000
