Unboxed Training & Technology
Master Services Agreement
The Master Services Agreement (“MSA”) is a legal agreement between you (hereinafter referred to as “Client”) and Unboxed Technology, LLC, a Virginia limited liability company (“Unboxed”). This MSA contemplates a variety of arrangements under which Unboxed may provide various services to Client.
1.0 PURPOSE OF AGREEMENT
1.1 The purpose of the MSA is to confirm the present mutual intentions of the Parties concerning a proposed arrangement pursuant to which Unboxed will provide certain services to Client.
2.0 AGREEMENT STRUCTURE
2.1 Structure. The structure of the MSA is as follows:
- (a) MSA defines the basic terms and conditions of the contractual relationship between Unboxed and Client.
- (b) Each SOW describes a specific project. Said SOW shall reference the MSA and may include additional terms and conditions for a specific project.
2.2 Conflicting Terms. If there is a conflict of terms between the SOW and the MSA, the terms of the SOW shall prevail over the MSA.
2.3 No Commitment – This MSA is not a commitment by either party to execute a SOW.
3.1 Deliverables. Deliverables are Unboxed Deliverables and Client Deliverables collectively.
- (a) Unboxed Deliverables are any items or work prepared or provided by Unboxed under a SOW.
- (b) Client Deliverables are any items or work prepared or provided by Client under a SOW.
3.2 Personnel. Consist of the parties’ employees, agents, affiliates, representatives, and/or subcontractors working under the MSA and any SOW.
3.3 Services. Any reasonable effort expended by the parties or their Personnel to perform the work described in a SOW.
4.0 RELATIONSHIP OF THE PARTIES
4.1 It is the express intention of the parties that Unboxed is an independent contractor. Nothing in this Agreement will in any way be construed to constitute Unboxed, its personnel or any third Party engaged by Unboxed as an agent, employee, or representative of Client.
4.2 Except as otherwise stated in any related SOW, the parties hereto may have similar agreements with other third parties. Each party hereto may design, develop, manufacture, acquire or market competitive products and Services, and conduct its business in whatever way it chooses so long as it is not specifically prohibited by the MSA or a SOW.
4.3 During the term of this Agreement and for three (3) years thereafter, neither party shall use (except for the purpose of implementing this Agreement) or disclose to any third party (except a party’s subcontractors and independent contractors for the purpose of implementing this Agreement), without the prior written permission of the disclosing party, any confidential or proprietary information disclosed except as may be required by a court of law or government action. Confidential information includes, but is not limited to, all information, whether written or oral, and in any form, including without limitation, information relating to the terms of this Agreement, research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, Personnel data, third party proprietary. Neither party shall be liable to the other for confidential information which: (i) is already lawfully known to the receiving party at the time of disclosure; (ii) is in or subsequently enters the public domain without any violation of this Agreement by the receiving party; (iii) the receiving party obtains from a third party source not under an obligation of confidentiality to the disclosing party; or (iv) which is independently developed without use or reference to the confidential information, as evidenced by appropriate documentation. Each party shall use all reasonable efforts to obligate its Personnel to comply with this confidentiality provision. Nothing herein shall be construed as granting or conferring any right by license or otherwise to the receiving party in/to any confidential information disclosed hereunder except as specifically set forth herein. Upon notification of a party’s request or any termination of this Agreement, the receiving party shall return to the disclosing party the confidential information and all copies thereof of the disclosing party. Should Unboxed engage a subcontractor to perform any of its obligations under the terms of this MSA or any SOW hereunder, Unboxed Technology shall obtain a Confidentiality Agreement from the subcontractor.
4.4 Neither party relies on any promises, inducements, or representations made by the other or expectations of any future business dealings except as expressly provided in this MSA or any associated SOW.
4.5 Each party shall:
- (a) Perform Services and provide its Deliverables according to a given SOW. Each party has the right to evaluate a Deliverable in an SOW prior to accepting it to verify that such Deliverable meets the requirements and specifications set forth;
- (b) Comply with reasonable rules and regulations of the other party when its Personnel are on the other party’s premises;
- (c) Have appropriate agreements with its Personnel and third parties who perform obligations under the MSA and any SOW; and
- (d) Comply with all applicable federal, state and local laws, rules and regulations in carrying out its obligations under this Agreement and each SOW.
5.0 OWNERSHIP RIGHTS
5.1 Ownership of Intellectual Property. Each party shall continue to be the sole owner of all its current patents, copyrights, trade secrets, and other Intellectual Property Rights (hereinafter referred to as ‘IP’) unless otherwise set forth in this MSA or any related SOW. The party that owns such IP included in a Deliverable shall continue to be free to use such property in other projects and works, without restriction and without any obligation to the other party, except as may be otherwise specifically agreed to by the parties in a SOW. A party shall have no rights of ownership in the IP of the other party and its subcontractors, and shall only have the right to use such property as specifically provided for in this MSA or an applicable SOW. Except as otherwise specified herein or may be otherwise specified in a SOW, this MSA does not grant either party rights to use the other party’s trademarks, trade names, or service marks.
Furthermore, either party shall not at any time during the term of this MSA or any SOW, or at any time thereafter, own or be entitled to own the other party’s pre-existing IP used to create and accomplish the work for Client (hereinafter referred to ask ‘Pre-Existing Property’). The Pre-Existing Property includes, but is not limited to, training content, system design, tools, modules, functionalities, features, database schema or tables, codebase, functions, stored procedures, processes, or templates.
Custom IP shall mean IP made, conceived, or developed by Unboxed on behalf of Client in creating the Deliverable(s) or performing the Services outlined in a SOW. Custom IP shall include the copyright in the collective work. Custom IP does not include any of the following: (i) Unboxed IP; (ii) Client IP; or (iii) Third party IP. Unboxed acknowledges and agrees that Client shall be the sole and exclusive owner of all rights in the Custom IP. Unboxed hereby unconditionally and irrevocably conveys, transfers, delivers, and assigns to Client, and Client accepts Unboxed’s entire right, title, and interest worldwide in and to such works, free from any liens and encumbrances, including all patents, copyrights, trade secrets, and other proprietary rights therein, effective immediately upon the authorship, conception, creation, discovery or development thereof.
Unboxed acknowledges that the Services performed and all Deliverables, (including, but not limited to, all copyrights, whether registered or unregistered), for any original files or products that are provided to, or developed or prepared for Client by Unboxed under this Agreement are the exclusive property of Client, and all title and interest therein shall vest in Client and shall be deemed to be a work made for hire. However, sale by Client of Custom IP is not permitted. Transfer by Client of Custom IP to Client's subsidiaries and controlled affiliates is permitted upon 10 days advance written notice to Unboxed.
6.0 REPRESENTATIONS AND WARRANTIES
6.1 Each party hereto represents, warrants, and covenants that (i) it will comply with all applicable federal, state and local laws, rules and regulations in carrying out its respective obligations set forth hereunder and in any SOW hereto; (ii) it has the power and authority to execute and deliver this MSA and any associated SOW, and to perform its obligations thereunder; (iii) the execution, delivery and performance of this MSA has been duly and validly authorized and approved; and (iv) its IP does not infringe or dilute the IP of any third Party.
6.2 Client further represents, warrants, and covenants that:
- (a) as to each of its products that are the subject of any SOW, Client holds and is in compliance with all permits, licenses, approvals or other authorizations necessary to manufacture, sell and distribute the products, and which are necessary to perform its obligations under this MSA and each SOW;
- (b) as to each of its products that are the subject of any SOW, that Client has the necessary rights to sublicense, market and sell the product.
6.3 Unboxed further represents, warrants, and covenants that:
- (a) as to each of its products that are the subject of any SOW, the SOW(s) does/do not infringe any IP of any third Party and will not result in a breach of any agreement of Unboxed or infringe any third Party IP.
7.0 INDEMNIFICATION, LIMITATION OF LIABILITY, AND INSURANCE
- (a) Client agrees, at its sole expense, to indemnify, defend and hold harmless Unboxed, its affiliates and subsidiaries, any of Unboxed’s subcontractors associated with the performance of any SOW hereunder, and all of their respective officers, directors, agents, employees (collectively, the ‘Unboxed Indemnified parties’), from and against any and all actions, suits, proceedings, judgments, settlements, losses, claims, damages, costs or liabilities, including reasonable attorneys’ fees and costs of suit (collectively, “Claims”) which the Unboxed Indemnified parties may incur or for which they may become liable at any time as a result of any third party claim that any person or entity has been injured or suffered any personal injury, property damage, harm or other damages based upon the use of Client's proprietary private label product(s)/ Services.Client shall further defend, hold harmless and indemnify the Unboxed Indemnified parties from and against any third party Claims alleging that Unboxed’s participation in this MSA or any associated SOW violates an existing contract between Client and the third party claimant.
- (b) Unboxed agrees, at its sole expense, to indemnify, defend and hold harmless Client, its affiliates and subsidiaries, and all their respective officers, directors, agents and employees (collectively, the ‘Client Indemnified parties’), from and against any and all actions, suits, proceedings, judgments, settlements, losses, claims, damages, costs or liabilities, including reasonable attorneys’ fees and costs of suit (collectively, “Claims”) which the Client Indemnified parties may incur or for which they may become liable at any time as a result of any third party Claim that any person or entity has been injured or suffered any personal injury, property damage, harm or other damages due to Unboxed’s negligent and/or willful acts/omissions during its execution of any SOW. Unboxed shall further defend, hold harmless and indemnify the Client Indemnified parties from and against any third party Claim alleging that Unboxed’s participation in this MSA or any associated SOW violates an existing contract between Client and the third party claimant. Unboxed shall further defend, hold harmless and indemnify the Client Indemnified parties from and against any third party Claim alleging Unboxed’s infringement of any IP of any third party or misappropriation of a third party's confidential information in this MSA or any associated SOW.
- (c) The indemnified party as set forth in paragraphs 7.1(a)-(b) shall be given the opportunity to participate in the defense of any such Claims, however it shall not have any right to control the defense, consent to judgment, or agree to settle any such Claims, except with the written consent of the indemnifying party. The indemnifying party shall reasonably apprise the indemnified party of all significant developments relating to the defense of the Claims. Additionally, the indemnified party shall cooperate fully in the investigation and defense of any such Claims.
- (d) For the duration of this MSA, Unboxed shall procure and maintain Commercial General Liability insurance, which shall include blanket broad form contractual liability coverage, with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate. Unboxed shall also procure and maintain Worker’s Compensation insurance in accordance with relevant state statutory limits, Employer’s liability insurance with a limit of not less than $500,000 per occurrence. Upon reasonable request, Unboxed shall provide Client with Certificate(s) of Insurance evidencing such coverage and naming Client as an additional insured.
7.2 Limitation of Liability. Except in instances of negligence or willful misconduct or for the indemnification, ownership of IP and confidentiality obligations of the parties provided herein or in any associated SOW, neither party hereto shall be liable to the other for any lost profits, punitive, incidental, special or consequential damages, whether based on breach of contract, tort, or otherwise, and whether or not the party was advised of the possibility of such damages.
8.0 TERM AND TERMINATION
8.1 This Agreement shall become effective on the Effective Date set forth on the first page of this MSA and shall remain in effect until it is terminated by either party upon providing no less than thirty (30) days written notice of such termination.
8.2 If any SOW remains in effect for a period of time beyond the expiration date of this MSA, this MSA shall be automatically extended through the last day that the SOW remains in effect. Either party shall have the right to terminate this Agreement or any SOW without penalty if the other party is in breach of any material term of the Agreement and/or SOW provided, however, a breach of a SOW for a Deliverable is not considered a breach of all SOW.
8.3 If a Petition in Bankruptcy or Insolvency Act in the jurisdiction wherein Unboxed is located or doing business is filed by or against Unboxed, Client may immediately terminate this Agreement and all SOW without penalty.
8.4 If a Petition in Bankruptcy or Insolvency Act in the jurisdiction wherein Client is located or doing business is filed by or against Client, Unboxed may immediately terminate this Agreement and all SOW without penalty.
9.0 PRICES, PAYMENT, TAXES, AND AUDIT
9.1 The Parties shall be compensated for work in accordance with this MSA and its SOW. All payments shall be made in US dollars within thirty (30) days of receipt of invoice. The Party to be compensated shall submit invoices in accordance with the terms set forth in the SOW.
10.0 GENERAL PROVISIONS
10.1 No delay or failure by the parties hereto in the performance of any obligation of this MSA or any SOW shall be deemed a breach of this MSA or any SOW nor shall it create any liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected party, including, but not limited to, wars, riots, insurrection, civil commotion, accident, shortage of materials or equipment, government regulations, fire, flood, storm, or any other acts of God, including defects and/or breakdowns of equipment and programming errors not within the reasonable control of the affected party, provided that the Party so affected shall use its best efforts to avoid or remove such cause of nonperformance and shall continue performance as soon as practicable. In the event such cause occurs and exceeds thirty (30) calendar days, the party not so impeded may cancel the applicable SOW upon written notice and without penalty.
10.2 Each of the parties shall render its commercially reasonable cooperation to the other in fulfilling and performing the terms of this MSA and any SOW. To that end, each shall give to the other, in a timely manner, all consents and information and execute all documents that may be reasonably required.
10.3 This MSA contains the entire agreement of the parties with respect to the subject matter herein/therein, and all prior discussions, negotiations, letters of intent and understandings regarding such subject matter are merged herein and shall not endure. All Exhibits and/or Appendices, and SOW attached hereto, and as amended in writing by the parties, are an integral part of this Agreement. This MSA and any SOW may only be amended or modified in writing and signed by both parties. Should any term/clause appearing on any Purchase Order/Invoice conflict with the terms as set forth within this MSA, the terms of this MSA shall control.
10.4 This MSA may not be transferred or assigned, in whole or in part, by either party without the prior written consent of the other, which consent shall not be unreasonably withheld; except however, (i) either party hereto may grant its rights and delegate its obligations under the MSA to its subsidiaries and affiliates without written consent from, but upon written notice to, the other party hereto, and (ii) Unboxed may subcontract its obligations to a third party subcontractor as otherwise set forth herein.
10.5 This MSA and any SOW shall bind the parties and their successors and assigns.
10.6 Any waiver of any provision shall be valid only in the instance for which given and shall not be deemed a continuing waiver nor otherwise construed as a waiver of any other provision.
10.7 If any provision of this MSA is held invalid or unenforceable as written, such provision shall be construed and enforced to the extent practicable and lawful as if it has been more narrowly drawn so as not to be invalid or unenforceable or otherwise shall be severed from the other provisions of this MSA, and the remaining provisions of this MSA shall remain in effect and be enforceable in accordance with their terms.
10.8 The confidentiality, ownership of IP, and indemnification obligations hereunder shall survive termination or expiration of this MSA.
10.9 This MSA and any associated SOW shall be governed by and construed in accordance with the laws of the State of Virginia, without regard to those provisions governing conflicts of law.
version 3.1 – March 2020