Between GROW Design and Development, Inc. and the Client
THIS MASTER SERVICE AGREEMENT the (“Agreement”), effective January 23, 2019 (“Effective Date”), is entered into by and between GROW Design and Development, Inc., having a principal place of business at 1551 Lincoln Way, Auburn, CA 95603 (hereinafter called “GROW”), and the Client.
The purpose of this Agreement is to define the working relationship between GROW and the Client, define general governance, and allows projects to be added as an attachment or Statement of Work (SOW). GROW shall provide the Client with the services and/or products as described in each SOW. Each SOW may include additional governance as is needed for the specific project.
The term of this Agreement will be from the Effective Date until terminated as provided in Section 15 or December 31, 2020, whichever comes first (the “Term”).
2. STATEMENT OF SERVICES
GROW and the Client hereby agree to collaborate on software design and development related activities and tasks, pursuant to statements of work (“Statements of Work” or “SOWs”) to this Agreement. Any services provided by one of the Parties under this Agreement are referred to as the “Services.” For purposes of this Agreement, the Party engaged to perform the Services is the “Performing Party” and the Party for which the Services are to be performed is the “Engaging Party.”
All SOWs that are negotiated between the Parties shall be in writing and executed by both Parties and shall be attached hereto as supplemental Exhibits, and shall be incorporated into, and governed by, this Agreement. Each SOW will set forth, among other things:
(a) a description of the Services to be performed;
(b) the responsibilities of both Parties;
(c) an estimated timeline;
(d) project milestones and any deliverables to be created for the Client (the “Deliverables”) and
(e) estimated budget (“Budget”) for the Services.
If a Party requests a change to an SOW, the Parties shall execute a written change order (the “Change Order”), which shall identify in reasonable detail:
(a) a summary of the change requested;
(b) the impact on the project schedule;
(c) the impact on the Deliverable and the Services; and
(d) the impact on the project Budget, if any. For the avoidance of doubt, all Change Orders are subject to the written approval of both GROW and the Client.
The Budget and the payment terms will be defined in each SOW. Except as otherwise provided in such SOW, undisputed invoices shall be payable within thirty (30) calendar days after the date of the invoice. Any invoices not paid within thirty (30) days of the date of the invoice will bear interest at the lesser of twelve percent (12%) per year or the maximum amount allowed by law. Payment shall be made via check, cashier’s check, ACH, or credit card to GROW Design and Development, Inc.
4. INDEPENDENT CONTRACTOR
The relationship between GROW and the Client shall, within the context of the SOW, be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Each Party shall, at all times during the term of this Agreement, perform the duties and responsibilities herein without any control by the other Party. Either Party may realize a profit or loss in connection with performing the services. Either Party may render similar services for the benefit of others.
Neither Party is an agent of the other Party and is not authorized to make any representation, contract, or contract commitment on behalf of the other Party.
Confidential Information shall be treated as confidential during the term of this Agreement and for a period of two (2) years thereafter. During such period, the Parties will not:
(a) disclose the Confidential Information of the Disclosing Party to any third party, using at least the same degree of care as it uses to protect its own confidential information, but not less than reasonable care or
(b) use such information for any purpose other than to perform its obligations under this Agreement. Confidential Information does not include information which:
(i) has previously been made generally available to the public,
(ii) becomes publicly known, without fault on the part of the Receiving Party, subsequent to disclosure by the Disclosing Party of such information to the Receiving Party,
(iii) is received by the Receiving Party at any time from a source, other than the Disclosing Party, lawfully having possession of and the right to disclose such information,
(iv) otherwise becomes known by the Receiving Party prior to disclosure by the Disclosing Party to the receiving party of such information, or
(v) is independently developed by the Disclosing Party or Receiving Party without use of such information.
The Receiving Party will not disclose Confidential Information of the Disclosing Party except to the Receiving Party’s officers, directors, employees, agents, and consultants who are under obligation of confidentiality upon a “need to know” basis in connection with negotiations amongst the Parties or if required to be disclosed by law, government regulation, or court order, provided that the Receiving Party promptly notifies the Disclosing Party upon learning of any such legal requirement, and cooperates with the Disclosing Party in the exercise of its right to protect the confidentiality.
Upon termination of this Agreement, each party will, upon request, return all copies of Confidential Information received from the other.
6. INTELLECTUAL PROPERTY
The term “Inventions” means inventions including specific software designs and development and other intellectual property related to the operations and business model of the Client, whether solely or jointly, by the Parties as a result of the work performed under this Agreement. Inventorship of Inventions shall be determined according to applicable United States patent laws.
7. OWNERSHIP OF WORK PRODUCT
GROW and the Client agree that the resulting combined Work Product of Services and Deliverables created by GROW, and all related copyrights, trademarks, patents, trade secrets, Confidential Information, and other proprietary rights are the property of the Client. Except to the extent otherwise provided in this Agreement, GROW does not have any right, ownership, or title in the Work Product or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights. The parties agree that the Work Product, and all associated intellectual property rights are being sold in their entirety to the Client for whatever use the Client desires. Nothing in this agreement may be construed to convey a mere license to the Client.
8. WARRANTIES AND LIABILITY
GROW and the Client warrant that they shall use commercially reasonable efforts to carry out their duties in accordance with applicable best practices, and all other applicable federal and state regulations and laws. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, EACH PARTY HEREBY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING WITHOUT LIMIT, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE WITH RESPECT TO THE PERFORMANCE OF SERVICES HEREUNDER. EXCEPT WITH RESPECT TO SECTION 10 (INDEMNIFICATION) BELOW, IN NO EVENT SHALL THE PERFORMING PARTY BE LIABLE TO THE ENGAGING PARTY (OR THE ASSOCIATED INDEMNIFIED PARTIES AS DEFINED THEREIN) FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, REVENUE, OR BUSINESS, WHETHER BASED ON BREACH OF CONTRACT, TORT, STATUTE, EQUITY, PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. EXCEPT WITH RESPECT TO SECTION 10 (INDEMNIFICATION) BELOW, THE PERFORMING PARTY’S TOTAL LIABILITY TO THE ENGAGING PARTY (OR THE ASSOCIATED INDEMNIFIED PARTIES) UNDER THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF THE TOTAL AMOUNT PAID BY THE ENGAGING PARTY TO THE PERFORMING PARTY DURING THE PREVIOUS 6 MONTHS UNDER THIS AGREEMENT.
9. DATA BREACH
In the event of any unauthorized access or theft of data, the Client shall promptly notify GROW and do all such acts and things as GROW considers reasonably necessary to remedy or mitigate the effects of the data breach. The parties shall coordinate and cooperate in good faith on developing the content of any related public statements or any required notices.
(a) Compliance with Notification Laws. the Client shall comply with all applicable Laws regarding the notification of individuals in the event of an unauthorized release of personally identifiable information and notification other unauthorized data and information disclosures.
(b) Procedure After Unauthorized Disclosure. Within 24 hours of discovering any breach of the Client’s security obligations or of any other event requiring notification under applicable Law, the Client shall notify GROW, and any other individuals Law requires to be notified, of the breach or other events by telephone and e-mail.
(c) Indemnification Related to Unauthorized Disclosure. the Client shall indemnify and defend GROW against any losses arising out of claims related to any unauthorized disclosure or other events requiring notification under applicable Law.
The Client shall, to the fullest extent permitted by law, defend, indemnify and hold harmless GROW and its members, directors, officers, employees and agents (“GROW Indemnified Parties”) from and against any and all third party claims, liabilities, losses and expenses (including reasonable attorneys’ fees), directly or indirectly, wholly or partially arising from or in connection with any negligent, gross negligent or intentional tortuous act or omission of the Client, its employees or agents, related to the Work Products, Deliverables, and Services performed by GROW under this Agreement.
11. FORCE MAJEURE
Any delay or failure of a Party hereto to perform its obligations hereunder will be excused if and to the extent that it was caused by an event or occurrence beyond such Party’s reasonable control and without its fault or negligence (“Force Majeure”). Force Majeure includes, but is not limited to, acts of God, actions by any government authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, or court injunction or order. A Party claiming Force Majeure must provide the other Party with written notice of such delay (including the anticipated duration of the delay) within ten days of the occurrence of Force Majeure. If the delay lasts more than 30 days, or if the Party claiming Force Majeure does not provide adequate assurances to the other Party that the delay will cease within 30 days, such other Party may terminate this Agreement upon written notice to the Party claiming Force Majeure.
In the event one Party believes the other Party to be in breach of this Agreement (“Dispute”), the aggrieved Party shall notify the other Party or its counsel (“Notice”) of the alleged breach or violation, and the Parties shall attempt in good faith to resolve or clarify the Dispute (“Negotiation”). In the event the parties are unable to cooperatively resolve the Dispute, they shall attempt, in good faith, to mediate the matter in a mutually acceptable location within the state of California. (“Mediation”), engaging the services of a mediator familiar with subject matter at issue and acceptable to both Parties. Applicable mediation fees shall be borne equally by the Parties. The requirement of Mediation shall be deemed satisfied if the filing Party proposed a qualified mediator and offered to make itself reasonably available during the 60 days following Notice, but Mediation did not take place or conclude within such 60-day period.
The requirement of Mediation and Negotiation may be waived upon mutual written consent of the Parties. Further, notwithstanding the foregoing, either Party may seek injunctive relief against a Party related to the acts or omissions of such Party that breach this Agreement and cause or are likely to cause irreparable harm to the other Party, without the requirement of Mediation or Negotiation.
13. APPLICABLE LAW
This Agreement shall be governed by the laws of the State of California, without regard to its conflict of laws rules.
Any notice required or permitted hereunder shall be in writing and shall be deemed given as of the date it is:
(a) delivered by hand;
(b) received by Registered or Certified Mail, postage prepaid, return receipt requested.
This Agreement may be terminated by either Party upon 30 days’ prior written notice following expiration of the last remaining SOW, or if the other Party materially breaches this Agreement and such breach is not cured within 30 days following receipt of written notice of termination.
Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties accrued prior to the effective date of the termination. Upon termination of this Agreement, an Engaging Party shall pay a Performing Party any unpaid Invoices set forth in an associated SOW for Services provided through the date of termination, unless such termination was in connection with a breach or alleged breach of such Performing Party.
This Agreement may only be extended, renewed or otherwise amended by the mutual written consent of Parties hereto or as otherwise provided in this Agreement.
17. ENTIRE AGREEMENT
This Agreement, the exhibits hereto, including any related SOWs, constitute and contain the entire agreement and final understanding between the Parties concerning the Services and all other subject matters addressed herein or pertaining thereto. This Agreement supersedes and replaces all prior negotiations and all prior or contemporaneous representations, promises or agreements, proposed or otherwise between the parties, whether written or oral, concerning the Services, any deliverables and all other subject matters addressed herein or pertaining thereto.
Neither Party hereto may assign, cede, or transfer any of its rights or obligations under this Agreement without the written consent of the other Party, whether by merger, acquisition, sale, operation of law, or otherwise.
No waiver of any term, provision or condition of this Agreement whether by conduct or otherwise in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition, or of any other term, provision or condition of this Agreement.
IN WITNESS WHEREOF, the Parties have indicated their acceptance of the terms of this Agreement by the latest of the signatures set forth below, effective on the Effective Date.