Master Services Agreement

This Master Services Agreement (“Agreement”) is applicable to all services and work provided during a project or engagement between Blend Commerce LTD, Registered Company Number -10658108, Registered Address - 55 High Street, Alcester, B49 5AF. and a client (“Client”) that has authorized Blend Commerce to provide services and work.

Recitals

WHEREAS, Company is in the business of computer software consulting and development services.

WHEREAS, Client desires to engage Company to provide software consulting and development services, and Company agrees to perform such services, on the terms and conditions set forth herein.

WHEREAS, Company and Client agree that this Agreement shall apply to all such future services.

Agreement

THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 

1. Services. Company agrees to perform services for Client as described in one or more Estimates, Proposals, Project Plans, or Statements of Work (hereinafter, “Services” and “Statement of Work” respectively). Any conflict or inconsistency between the provisions of this Agreement and any executed Statement of Work shall be resolved by giving precedence to the executed Statement of Work under which the Services are to be performed and then to this Agreement.

2. Cooperation. Client shall assist Company in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in this Agreement at its own expense. Client shall make available to Company a designated representative who shall be authorized to make binding decisions for Client regarding the obligations which are the subject of this Agreement, and shall perform or have performed other duties and requirements of Client as set forth in this Agreement or in an applicable Statement of Work, including: providing Company with reasonable and prompt co-operation to facilitate Company’s performance of any Statement of Work in a timely and efficient manner; the provision of such information as Company may request and ensure that such information is accurate in all material respects; and ensure that its network and systems comply with the relevant specifications recommended by Company from time to time.

3. Reliance. Client understands that Company shall rely upon Client’s Representative as having the authority specified in Section 2 herein and that all official communications from Company to Client shall be addressed to Client’s Representative.

4. Work Provisions

4.1 Independent Contractor. In the performance of its obligations under this Agreement, Company is and shall remain an independent contractor and nothing in this Agreement or in a Statement of Work shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between Company and Client. Nothing herein shall be deemed or construed to create an employment relationship between Client and any employee, agent or independent contractor of Company. Neither party shall have any authority to insure any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.

4.2 Company’s Personnel. Company shall have sole discretion over the identity of its personnel used to provide the Services, provided that Company shall ensure that the personnel are in all cases suitably qualified and experienced.

4.2.1 Non-Solicitation. Client acknowledges and agrees that any attempt on the part of Client to induce employees or independent contractors to leave Company’s employ, or any effort by Client to interfere with Company’s relationship with its employees or other service providers would be harmful and damaging to Company. Client agrees that during the term of this Agreement and for a period of two (2) years after the end of the Initial or Renewal Term, Client will not in any way, directly or indirectly: (i) Induce or attempt to induce any employee or other service provider of Company to quit employment or providing services for or on behalf of Company; (ii) otherwise interfere with or disrupt Company’s relationship with its employees, independent contractors, or service providers; (iii) discuss employment opportunities or provide information about competitive employment to any of Company’s employees, independent contractors, or service providers; or (iv) solicit, entice, or hire away any employee, independent contractor, or other service provider of Company.

4.3 Non-Exclusivity. Without authorizing Company (or its personnel) to engage in any conduct or activities which would result in a breach or violation of any term of this Agreement, Client recognizes that Company’s personnel providing services to Client under this Agreement may perform similar services from time to time for other persons, and this Agreement shall not prevent Company from using such personnel for the performance of such similar services for such other persons. Company recognizes that Client may engage other consultants to perform similar services from time to time, and this Agreement shall not prevent Client from using such consultants.

4.4 Intellectual Property Definitions

4.4.1 "Client's Business" shall mean the type of business that the Client engages in with respect to the project work that is to be undertaken, and any other application features or functionality related to the same.

4.4.2 “Intellectual Property Rights” shall mean all intellectual property rights, howsoever arising and in whatever media, whether or not registered, including copyright, patents, trademarks, website marks, trade names, registered designs and any applications for the protection or registration of these rights. 

4.4.3 "Type A Deliverables" shall mean Deliverables that are specific to Client's Business, including, but not limited to source code and documentation associated therewith. Examples of Type A Deliverables include custom graphics and templates, custom CSS and JavaScript files, helper modules, model and controller classes, and executable specifications used by the developers to build software.

4.4.4 "Type B Deliverables" shall mean Deliverables that are not specific to Client's Business, including, but not limited to frameworks, tools, methodologies, plug-in and third party source code and documentation associated therewith. Examples of Type B Deliverables might include patches and enhancements to open source libraries, such as the PHP framework itself, and/or numerous JavaScript plug-ins available from third parties, contributions to which are generally accepted practice in the open-source world.

4.5 Ownership. Once Company’s Fees in relation to the Deliverables have been paid by Client in full and in cleared funds, the entire right, title and interest in Type A Deliverables, including, without limitation, the software, documentation, source code, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all Intellectual Property Rights, shall be the exclusive property of the Client.

4.5.1 Works-for-hire. Once payment of all Company’s Fees which are due and payable has been made in full by the Client, Type A Deliverables shall be deemed works-for-hire and shall be the exclusive property of Client. Company expressly agrees to assign to Client the copyright in any Type A Deliverables that do not meet the requirements of a work-for-hire under UK Copyright Law, as soon as such work is fixed in a tangible form or medium and the Fees due in relation to it have been paid in full. Additionally, independent of UK Copyright Law, Company hereby assigns to client, to the fullest extent possible under the law, all of its right, title and interest, if any, in and to the Type A Deliverables. Company further agrees to execute and deliver such instrument(s) and to take such action(s) as may be required and/or requested by Client to confirm and/or defend Client's sole and exclusive ownership of the Type A Deliverables. Except as otherwise set forth herein, the entire right, title and interest in and to Type B Deliverables, including, without limitation, the software, documentation, source code, and all modifications to the foregoing, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all Intellectual Property Rights, are owned exclusively by Company.

4.5.2 License. Company hereby grants to Client a perpetual, limited, non-exclusive, non-transferable, worldwide license, revocable only in the event of a breach by Client of this Agreement, without the right to grant sub-licenses (except that Client may grant sub-licenses to its affiliates and/or subsidiaries), to use the Type B Deliverables in accordance with this Agreement in furtherance of Client's Business.

5. Warranties

5.1 Warranty of Authority; No Conflict. Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit or be contrary to any other agreement.

5.2 Warranty of Services and Software

5.2.1 Limited Warranty. If there are any defects in software which are caused by source code or data developed or modified by Company and which occur within 30 days of the installation of the software onto the live server, Company shall at its sole discretion either correct such defects at no charge or provide a refund of the Fees paid in respect of such software provided that the software and the code have not been modified in any way by a third party or the Client and the software has been used at all times in accordance with the Company’s instructions to the Client from time to time including the ‘Go Live Handover and Training Procedure’. Client acknowledges and agrees that the determination of the cause of a defect may require additional time to troubleshoot the source of the defect. The time spent to troubleshoot or correct software flaws which are determined not to have been caused by source code or data developed or modified by Company will be billed on a time and materials basis.  The remedies in this sub-clause are the sole and exclusive remedy available to the Client in respect of defects in the software.

5.2.2 Warranty Disclaimer. The warranties set forth in this agreement are exclusive and are in lieu of all other warranties, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except when otherwise stated in writing the materials produced under the terms of this agreement are provided to client "as is," that is, without warranty of any kind, either expressed or implied. The entire risk as to the quality and performance of the software and/or services provided under this agreement rests solely with the client.  Should the software or program prove defective, except in the circumstances set out in 5.2.1, client solely assumes the cost of all necessary servicing, repair or correction, including without limitation any "debugging."

5.2.3 No Infringement. The parties represent and warrant that their disclosure and delivery of any information, documents, software and other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any Intellectual Property Rights.

5.2.4. Except as otherwise stated above, neither party makes any warranties of any kind or nature, whether express or implied, including, but not limited to, warranties related to information or business advice provided, warranties related to outcomes based on information or advice provided, warranties of merchantability or mercantile quality, warranties of fitness for a particular purpose or use, warranties or conditions arising by statute or otherwise in law, or warranties of any products or services provided by third-party vendors.

6. Liability. The parties agree that neither party’s liability for damages from any cause of action whatsoever, regardless of the form of action, will exceed the fees paid or to be paid by client pursuant to an applicable Statement of Work under this agreement. In no event shall either party be liable for lost profits or any indirect, incidental, consequential or special damages of any nature whatsoever, including, without limitation, damages arising from loss of use of any software or hardware, costs of procurement of substitute products or services, lost data, lost profits or revenue, or for any claim or demand by any third person, arising out of or related to the agreement or the performance or breach thereof, even if advised of this possibility.

7. Fees, Invoices, Payment

7.1 Fees. Client shall pay Company at the rate set forth in the applicable Statements of Work.

7.1.1 Invoices/Payment. Company shall invoice the Client monthly or upfront, as per the Client’s invoice and as provided in the relevant Statement of Work. Any such invoice shall be payable within 7 days from the receipt thereof. Late payments shall accrue interest at a rate of the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law. In the event of any dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein.

7.1.2 The Fees quoted to the Client and set out in a Statement of Work are calculated on the basis of the Services being provided within three months of the date of the relevant Statement of Work.  In the event that the provision of the Services has not been completed within this timeframe, the Company shall charge the Client an additional Fee equal to 25% of the total Fees quoted in the Statement of Work, which is to cover the additional administration and other costs incurred by the Company in providing the Services over a longer timeframe.  This Fee represents a genuine pre-estimate of the additional costs incurred by the Company in these circumstances.

7.1.3 Suspension of Service. In the event an invoice is not paid within the specified time period, Services performed by Company may be immediately discontinued, delayed or placed on hold at Company’s sole discretion without regard for any project deadlines or other provisions of this Agreement or applicable Statement(s) of Work.

7.1.4 Expenses. Client shall reimburse Company for all materials and reasonable out-of-pocket Fees and Expenses incurred in connection with the performance of its obligations under this Agreement (“Expenses”).

8. Term and Termination

8.1 Notice. Either party may terminate this Agreement or any Statement of Work upon thirty (30) days written notice to the other party, when the Statement of Work includes ongoing provision of services.

8.2 Monetary Breach. If a party fails to make a monetary payment as specified in this Agreement, the non-breaching party shall notify the other party of such failure and if the breaching party fails to cure such breach within twenty-one (21) business days, the non-breaching party may immediately terminate this Agreement or any Statement of Work.

8.3 Continuation. This Agreement shall remain in full force and effect and govern Services provided to Client by Company until this Agreement is terminated, or the parties mutually agree otherwise.

8.4 Termination. Upon termination of this Agreement for any reason: (a) Client shall immediately pay to Company all amounts owed to Company pursuant to Section 6 hereof for Services performed and expenses incurred prior to the date of termination; (b) each party shall immediately cease all use of and shall return to the other party within ten (10) business days all Confidential Information and materials of such other party and all copies, portions and abstracts thereof, that are in its possession or under its control, other than any materials for which Client has paid or agrees to pay. Company shall deliver to Client such portion of the Services that are complete.

9. Confidentiality

9.1 Confidential Information. In connection with this Agreement, Client may disclose, or Company may learn of or have access to, certain confidential proprietary information owned by Client or its affiliates, business partners or clients (“Confidential Information”). Confidential Information includes, but is not limited to, any data or information, oral or written, that relates to Client or any of Client's existing or contemplated business activities, technology, developments, software, methods, trade secrets, and clients. Confidential Information also includes the terms of this Agreement and the Services.

9.2 Public Domain. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed, (ii) is or becomes publicly available or enters the public domain through no fault of Company, (iii) is rightfully communicated to Company by persons not bound by confidentiality obligations with respect thereto, (iv) is already in Company's possession free of any confidentiality obligations with respect thereto, (v) is independently developed by Company without use of any Confidential Information or (vi) is approved for release or disclosure by Client in writing without restriction.

9.3 Limitation of Disclosures. During the term of its engagement and for all periods thereafter, Company shall maintain the Confidential Information in strict confidence and shall not disclose, publish or copy any part of the Confidential Information. Company shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement. Company shall not use the Confidential Information, or any portion thereof, for its own benefit or for the benefit of any third-party. Company shall take all necessary precautions in handling the Confidential Information and limit disclosures on a strict need-to-know basis. However, Company may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Company gives reasonable prior notice to Client to contest such order or requirement. Upon the termination or expiration of this Agreement, Company shall return to Client or certify the destruction of all Confidential Information.

9.4 Publicity. Notwithstanding anything to the contrary in the Agreement or applicable Statements of Work, Company shall be permitted to disclose in summary form the nature of the work performed for Client. Such disclosure includes a description of the technology utilized by Company, but Company shall not disclose the proprietary business processes of Client or otherwise result in any breach of any other term of this Agreement.

9.5 Reference. Notwithstanding anything to the contrary in the Agreement or applicable Statements of Work, each party is entitled to reference the other party and describe work completed under this Agreement and any related Statements of Work in summary and general form, without revealing any of the other party’s confidential information.

10. General Provision

10.1 Notices. All notices required shall be in writing and shall be effective on the date of emailing to the parties at the addresses provided by each party to the other, marked for the attention of the signers of this Agreement.

10.2 Severability. Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable.

10.3 Waiver. The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.

10.4 Indemnification. Client agrees to defend, indemnify, and hold harmless Company, its agents, officers, directors, employees, successors, assigns, and affiliates from and against all claims, costs, expenses, damages, loss, fine, penalty, liability or judgment (including professional fees and costs reasonably incurred) arising out of or relating to an actual or alleged breach of any of the obligations  in clause 5.2.3 of this Agreement by Client or any of its officers, employees, agents

10.5 Force Majeure. Neither party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, delays caused by the other party, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.

10.6 Headings. Section headings are for the convenience of the parties and should not be construed as part of this Agreement.

10.7 Survival. The provisions of Sections 4, 5, 6, 7 and 9 shall survive the expiration or termination of this Agreement. All other provisions of this Agreement, including any Exhibits and Statements of Work hereto which by their terms or import are intended to survive such expiration or termination, shall survive.

10.8 Entire Agreement. This Agreement supersedes all prior oral or written representations, communications, or agreements between the parties, and, together with any appendices, constitutes the final and entire understanding of the parties regarding the subject matter of this Agreement. Neither party has relied on any such prior oral or written representations, communications, or agreements.

10.9 Governing Law and Jurisdiction. This Agreement shall be deemed executed in the United Kingdom and shall be governed by the laws of England and Wales and each of the parties  irrevocably submits for all purposes (including any non-contractual disputes or claims) to the exclusive jurisdiction of the courts in England and Wales.

10.10 Disputes. Any controversy or claim between the parties shall be settled first by negotiation between the parties’ respective project managers. In the event the project managers are unable to resolve the dispute in a reasonable period of time, the parties agree to elevate the dispute to their respective Presidents or equivalent officer. If, after a reasonable period of time, the parties are still unable to resolve the dispute, the parties agree to settle the dispute by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. This sub-clause does not restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or  protect any Intellectual Property Rights or trade secrets whether by way of injunctive relief or otherwise.