MASTER PROFESSIONAL SERVICES AGREEMENT
Recitals
A. CLIENT wishes to hire Tahoma Tech Solutions to perform certain services, described in one or more separate Statements of Work (the “Services”); and
B. Tahoma Tech Solutions is willing to provide the Services on the terms and conditions described in this Agreement and in the Statement(s) of Work; and
C. CLIENT and Tahoma Tech Solutions acknowledge that no Agreement can fully describe the tone and intent for a business relationship. Accordingly, both agree to work together towards the goals and benefits desired by each party and should disagreements occur, or changes become necessary, both parties agree to approach such discussions with a goal for reasonability and preservation of a trusted business relationship.
Agreement
NOW THEREFORE, the parties agree as follows:
1. Definitions.
The following definitions shall apply in addition to the definitions contained elsewhere in this Agreement:
1.1 “CLIENT Materials” means all content, information, marks, data, images, graphics and other materials provided by CLIENT to Tahoma Tech Solutions under this Agreement. The term “CLIENT Materials” also include any third party data, information, content or other materials to be used in the creation or development of a Deliverable that CLIENT is required to provide for Tahoma Tech Solutions’s use pursuant to the terms of any Statement of Work.
1.2 CLIENT Property” means all Deliverables except for Tahoma Tech Solutions Property embedded in or included in the Deliverables; provided, however, any CLIENT Materials shall remain CLIENT Property whether or not payment has been made for any Deliverables.
1.3 “Confidential CLIENT Information” shall mean information that is owned by the Client.
1.4 “Confidential Tahoma Tech Solutions Information” shall mean information that is owned by Tahoma Tech Solutions.
1.5 “Deliverable” means the items, materials or other products (tangible or intangible) identified as a “Deliverable” or “Deliverables” in any Statement of Work.
1.6 “Intellectual Property Right” means any patent, copyright, trade secret, trade name, trademark or other intellectual property right.
1.7 “Tahoma Tech Solutions Property” means (i) all tools, concepts, methodologies (including, but not limited to scoring methodologies), patterns, processes, systems, algorithms, techniques and know-how developed prior to or in connection with this Agreement (“Tools”); and (ii) materials created prior to or apart from this Agreement, including, but not limited to, the format and structure of Deliverables (“Tahoma Tech Solutions Content”).
1.8 “Statement of Work”. A Statement of Work sets forth the Services to be provided by Tahoma Tech Solutions, the business considerations for such services and the obligations of the CLIENT (“Statement of Work”).
2. General Obligations.
Tahoma Tech Solutions shall perform the Services described in each Statement of Work, and CLIENT shall pay Tahoma Tech Solutions for such Services as specified in each Statement of Work and this Agreement. CLIENT shall make Client’s employee, facilities and information available to Tahoma Tech Solutions in accordance with Tahoma Tech Solutions’s reasonable requests.
3. Professional Services Team.
Tahoma Tech Solutions shall use the personnel identified in the Statement of Work (the “Professional Services Team”) to perform the Services. Tahoma Tech Solutions may change the Professional Services Team at any time, but must receive Client’s prior written consent to change the CLIENT Account Manager, which consent shall not be unreasonably withheld.
4. Authorized Persons; Effectiveness.
NICK KNUTZEN, TAHOMA TECH SOLUTIONS CEO is authorized to negotiate, approve and execute any Statement(s) of Work (and any amendments thereto) on behalf of Tahoma Tech Solutions.
5. Statements of Work; Content; Execution.
Each Statement of Work that is subject to this Agreement shall be considered part of this Agreement and binding upon both parties. Each Statement of Work must be dated, executed by the person or persons authorized by each party under Section 4, above, and specifically refer to this Agreement as the governing contract for the Statement of Work.
6. Term; Termination; Default; Cure.
6.1 Term. The term of this Agreement will commence on the Effective Date, and will terminate on the first to occur of the following events or dates:
The effective date of written notice of termination for any Event of Default, which effective date shall be at least five days after receipt of the written notice by the breaching party;
Termination by either party on at least thirty (30) days prior written notice without cause;
One year following completion of all Services under all Statements of Work; and
The agreement of the parties in writing.
6.2 Events of Default. The following events constitute default under this Agreement (“Events of Default”):
Failure to pay fees required by this Agreement or any Statement of Work which fees remain unpaid following Client’s receipt of ten (10) days prior written notice from Tahoma Tech Solutions; and
Any other breach of this Agreement or any Statement of Work.
6.3 Cure. Except for an Event of Default arising from a failure to pay any amounts owed when due as provided in Subsection 6.2a above, the breaching party may cure an Event of Default under Subsection 6.2. within twenty (20) days after the effective date of termination with written notice to the non-breaching party.
7. Relationship of Parties.
Tahoma Tech Solutions will perform the Services as an independent contractor of CLIENT, and this Agreement will not be construed to create a partnership, agency, joint venture or employment relationship between Tahoma Tech Solutions and CLIENT. Tahoma Tech Solutions will retain full control over the manner and means by which it performs the Services and will not be entitled to and waives any entitlement to workers’ compensation, retirement, insurance or any other benefits afforded to employees of CLIENT.
8. Limitation of Liability; Representations/Warranties; Indemnification; Insurance; Waiver of Immunity.
As used in Subsections 8.1. through 4., “Tahoma Tech Solutions” means Tahoma Tech Solutions and members, consultants, employees, or other agents, and their respective owners, directors, and officers.
8.1 Limitation of Liability; Limitation of Damages.
Neither party shall be liable to the other party for any indirect, special or consequential damages (including lost profits) arising out of this Agreement, or the party’s performance under this Agreement.
Except as provided in Subsection 8.1.c. below, CLIENT agrees that Tahoma Tech Solutions’s total liability for any and all claims for direct damages, regardless of the form of action, shall not exceed the amount paid by CLIENT under the applicable Statement of Work for the services alleged to have caused the damages. Except as provided in Subsection 8.1.c below, Tahoma Tech Solutions agrees that Client’s total liability for any and all claims for direct damages, regardless of the form of action, shall not exceed the amount agreed to be paid by CLIENT under the applicable Statement of Work for the services alleged to have caused the damages.
The limitations under Subsection 8.1.b. above do not apply to each party’s respective indemnification obligations in Subsection 8.4., or any liability or damage resulting from a party’s breach of Section 9, or Section 11 of this Agreement.
8.2 Limited Warranties of Tahoma Tech Solutions. Tahoma Tech Solutions represents and warrants to CLIENT that it will perform all Services in a workmanlike manner consistent with generally accepted industry standards and all such Services shall conform to the Statement of Work. Tahoma Tech Solutions makes no other representations regarding the quality or effectiveness of the services to be performed under this agreement except as stated in this agreement. With respect to this agreement and the services provided by Tahoma Tech Solutions, except as provided in subsection 8.2., Tahoma Tech Solutions disclaims all express and implied warranties, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.
8.3 Representations and Warranties of CLIENT. CLIENT represents and warrants to Tahoma Tech Solutions that (i) CLIENT has the authority to enter into and perform its obligations under this Agreement, (ii) CLIENT has (or shall timely secure) all necessary rights, licenses, clearances and other permissions for any such CLIENT Materials owned by third parties that CLIENT provides to Tahoma Tech Solutions in furtherance of the work to be performed under this Agreement.
8.4 Indemnification; Insurance; Waiver of Immunity.
CLIENT and Tahoma Tech Solutions (each an “Indemnifying Party”) shall defend, indemnify and hold the other and its respective directors, officers, owners, and employees (“Indemnified Parties”) harmless from and against any and all claims, damages, losses and liabilities arising from third party claims based on: (A) the Indemnifying Party’s gross negligence or intentional misconduct; (B) any error or inaccuracy in, or misuse of, any information provided by CLIENT to Tahoma Tech Solutions or Tahoma Tech Solutions to CLIENT, or received by either CLIENT or Tahoma Tech Solutions from any third party; (C) any injury to persons or property arising from any product of the Indemnifying Party (except to the extent caused by an Indemnified Party); or (D) a condition or occurrence on any premises, property, or work location under the control of the Indemnifying Party;. Client’s and Tahoma Tech Solutions’s duty to indemnify and hold each other harmless shall include reasonable attorneys fees, court costs, and all other claim-related expenses. Client’s or Tahoma Tech Solutions’s duty to indemnify and hold each other harmless shall not be limited by any agreements with any third party. CLIENT or Tahoma Tech Solutions shall notify the other party promptly in writing of any claim subject to the indemnification obligations in this Subsection 8.D., and CLIENT or Tahoma Tech Solutions shall have the sole and exclusive control over the defense and settlement of such claim (provided that no settlement shall impose any financial or other liability on CLIENT or Tahoma Tech Solutions without Client’s or Tahoma Tech Solutions’s prior written consent).
Each party shall be responsible for obtaining insurance coverage in amounts it deems appropriate (but no less than coverage and amount that a reasonable business person would obtain) to insure itself against any losses that may arise out of its performance of this Agreement.
CLIENT specifically and expressly waives any immunity that may be granted to it under the Washington State Industrial Insurance Act, Title 51 RCW, or other similar statute of the state in which CLIENT is located, against claims by Tahoma Tech Solutions.
9. Confidential Information.
Except as required to carry out the engagements contemplated by this Agreement and any Statement(s) of Work, or with the written consent of the owning party, neither CLIENT nor Tahoma Tech Solutions shall use, disclose, or allow others to use or disclose any Confidential CLIENT or Tahoma Tech Solutions Information. “Confidential Information” means all information, provided by or obtained from either party, or any representative or agent thereof, arising out of or related to Client’s or Tahoma Tech Solutions’s business, including, without limitation, the identities of BSHs, business plans, communications records, technical information, marketing information, and communications policies. Confidential Information does not include information that: (i) becomes public or is generally available to the public through no fault of any non-owning party; (ii) is obtained independently by any non-owning party from a third party who is in rightful possession of such information with the freedom to disclose it; (iii) can be shown to have been independently developed by CLIENT or Tahoma Tech Solutions without use of information from the other party or breach of this Agreement; or (iv) is required to be disclosed by law, court order, subpoena, etc., provided, however, in the case of such required disclosure, CLIENT or Tahoma Tech Solutions shall, before disclosing such Confidential Information, give written notice in order to permit the owning party to oppose the disclosure, unless otherwise prohibited by law, court order, subpoena, etc. Upon written request CLIENT or Tahoma Tech Solutions will turn over to the owning party all originals and copies of records, documents, memorandums, and any other writings related to or derived from such Confidential Information, including any electronic copies thereof, whether provided by CLIENT or Tahoma Tech Solutions, prepared by CLIENT or Tahoma Tech Solutions, or otherwise, and will neither make nor retain any copy, reproduction or record thereof. Provided, however, that Tahoma Tech Solutions may keep such copies of Confidential Information as may be necessary to establish its right to any payments under this Agreement or any Statement of Work.
10. Intellectual Property; License and Ownership.
10.1 Client Materials. CLIENT shall retain ownership of all CLIENT Materials and all derivative works. CLIENT hereby grants Tahoma Tech Solutions a nonexclusive, royalty-free license to use, reproduce, modify, and create derivative works from the CLIENT Materials, for the sole purpose of performing the Services. Tahoma Tech Solutions shall have and claim no rights in or to any CLIENT Materials. CLIENT is responsible for securing, and represents that it has, all necessary rights, licenses, clearances and other permissions for any such CLIENT Materials owned by third parties that CLIENT provides to Tahoma Tech Solutions. CLIENT authorizes Tahoma Tech Solutions to post on the Tahoma Tech Solutions website, including link to CLIENT website, the CLIENT name, logo, testimonial and CLIENT approved case study.
10.2 Ownership of Deliverables. Except as otherwise provided in Subsection 10.4. and Subsection 10.5., Tahoma Tech Solutions shall assign to CLIENT, upon Client’s full payment of all amounts due for Deliverables pursuant to the payment schedule in a Statement of Work, all copyright and other proprietary interests created by Tahoma Tech Solutions for CLIENT under this Agreement with respect to such Deliverables, except for any Tahoma Tech Solutions Property contained therein or used to create the Deliverables (which CLIENT may freely use pursuant to the license granted in Subsection 10.4. below) and except for any CLIENT Materials (which CLIENT already owns). Until such amounts are paid, Tahoma Tech Solutions shall retain all ownership in such Deliverables (except for any CLIENT Materials).
10.3 Works Made for Hire. Tahoma Tech Solutions agrees that the Deliverables (except for any Tahoma Tech Solutions Property contained therein or used to create the Deliverables) are “works made for hire” as that term is defined under U.S. copyright law, and that as a result, CLIENT shall own all copyrights in the Deliverables created by Tahoma Tech Solutions, except for any Tahoma Tech Solutions Property contained therein or used to create the Deliverables. If any such Deliverables (excluding Tahoma Tech Solutions Property and the CLIENT Materials) (the “Copyrightable Deliverables”) are deemed for any reason not to be a work made for hire, Tahoma Tech Solutions, without further consideration, hereby assigns all such rights, title and interest in the Copyrightable Deliverables, and CLIENT shall be entitled to obtain and hold in its own name all copyrights in respect of such Copyrightable Deliverables. With respect to any other Deliverables (in addition to Copyrightable Deliverables, but not including any Tahoma Tech Solutions Property), Tahoma Tech Solutions hereby assigns, without further consideration, all other ownership interest Tahoma Tech Solutions may have in such Deliverables (other than any Tahoma Tech Solutions Property).
10.4 Ownership of Tahoma Tech Solutions Property; License of Tahoma Tech Solutions Property. Tahoma Tech Solutions shall retain and hereby retains ownership in all Tahoma Tech Solutions Property. To the extent any Tahoma Tech Solutions Property is embodied or contained in any Deliverable for which CLIENT has fully paid, Tahoma Tech Solutions shall grant and hereby grants to CLIENT and its agents a perpetual, non-exclusive, worldwide, transferable, royalty-free right and license to use, alter, manipulate or otherwise modify the Tahoma Tech Solutions Property for any purpose related to Client’s operations (“License”).
10.5 Other Services. Notwithstanding any other provision in this Agreement to the contrary, and subject to Section 9, Tahoma Tech Solutions may develop, use and distribute works comparable to the Deliverables and perform comparable services for others, with no liability to CLIENT.
10.6 Assistance. At Client’s expense, Tahoma Tech Solutions shall execute and deliver such instruments and take such other actions as may be requested by CLIENT to perfect or protect Client’s rights in the Services and Deliverables and to carry out the assignments set forth in Subsection 10.2. or to memorialize the grant of the License provided by Subsection 10.4. Tahoma Tech Solutions will cooperate with CLIENT, at Client’s expense, in the filing and prosecution of copyright or patent applications that CLIENT may elect to file for any Services or Deliverables. CLIENT acknowledges that Tahoma Tech Solutions has taken no such action as of the Effective Date and will do so only as and when requested by CLIENT.
11. Exceptions; Reasonableness of Restrictions; Remedies.
11.1 In view of the nature of the business in which the parties are engaged, and the information being disclosed between the parties, the parties believe and agree that the restrictions and the liquidated damages provisions contained in this Agreement are reasonable and necessary to protect their legitimate business interests. However, if any arbitrator or court having jurisdiction shall at any time hold such restrictions or liquidated damages provisions to be unenforceable or unreasonable whether as to scope, percentage or period of time specified, or otherwise, and if an arbitrator or court shall declare or determine the scope, percentage, period of time or other element that it deems to be reasonable, then such scope, percentage, period of time, or other element shall be deemed to be reduced to that declared or determined by the arbitrator or court to be reasonable.
11.2 The parties acknowledge and agree that any award of damages would not adequately compensate the aggrieved party for the significant and irreparable injury that would result from breach of the covenants contained in this Agreement. Therefore, in the event of any breach of this Agreement, the aggrieved party shall have the right to enforce its provisions by specific performance and injunction, as well as the right to recover its actual attorneys’ fees, expenses, and costs incurred in such efforts to enforce those section. These remedies reserved by the parties are cumulative and not exclusive of any other remedy otherwise available under this Agreement or in law or equity. If the posting of a bond is necessary to obtain any injunctive relief, the parties agree that a bond of $500.00 is reasonable.
12. Notices.
All notices must be in writing and delivered in person, or by facsimile or national overnight express delivery service, or United States mail (registered or certified mail, postage prepaid, return receipt requested). Notices will be effective upon receipt when provided to the following representatives at the addresses below listed:
13. General.
13.1 Conflicting Provisions. In case of any conflict between the terms and conditions of a Statement of Work and the terms and conditions of this Agreement, this Agreement shall be controlling, except and only to the extent that (i) a Statement of Work expressly overrides a provision of this Agreement identified by section number (except in the case of Sections 7, 8, 9, 10, and 11, which shall not be overridden), or (ii) this Agreement expressly states that a Statement of Work will govern as to a particular term or condition.
13.2 Assignment. This Agreement and the Statements of Work may not be assigned by either party without the prior written consent of the other; provided, however that either party may, without the consent of the other party, assign its rights under this Agreement to its successor in interest in the event of a sale of all or substantially all of such party’s stock or assets.
13.3 Applicable Law. This Agreement and the Statements of Work will be governed by the laws of the State of Washington.
13.4 Severability. If any provision in this Agreement is found to be illegal, invalid or unenforceable, such provision will be fully severable, and all other provisions will remain in full force and effect and fully enforceable. In lieu of any such illegal, invalid or unenforceable provision, there will be added as part of this Agreement a provision as similar in terms to the affected provision as may be possible, legal and enforceable.
13.5 Entire Agreement; Amendment. This Agreement and any Statements of Work executed pursuant hereto constitute the entire agreement between the parties with respect to Services covered by such Statements of Work and supersedes all prior and contemporaneous agreements. No other document, including any agreement between Tahoma Tech Solutions and CLIENT, shall be deemed to modify or amend any terms of this Agreement unless expressly stated in writing to do so and signed by both parties.
13.6 Arbitration. Any dispute or controversy related to or arising from this Agreement or the breach thereof, shall be determined and settled by arbitration to be held in Seattle, Washington, in accordance with the then existing rules of the Judicial Arbitration and Mediation Service (JAMS) of Seattle, Washington. In the event JAMS is no longer in existence, then the arbitration shall be conducted according to the then existing rules of the American Arbitration Association for commercial disputes. There shall be only one arbitrator, and such arbitrator shall be an attorney or a retired judge. In addition, the parties shall be entitled to reasonably complete pre-trial discovery in accordance with the Washington State Superior Court Civil Rules, as permitted by the Arbitrator. Any award rendered therein shall be final and binding on each and all of the Parties and judgment may be entered thereon in King County Superior Court for the State of Washington.
13.7 Attorney Fees. In the event of a dispute between the parties relating to this Agreement, the substantially prevailing party shall be entitled to recover all costs and expenses (including, but not limited to, collection process fees, reasonable attorney’s fees, attorney costs, fees and costs of arbitration, and fees and expenses incurred at trial or on appeal).
13.8 Waivers. No delay or failure of either party at any time to exercise or enforce any right or remedy available to it under this Agreement, and no course of dealing or performance with respect thereto, will constitute a waiver of any such right or remedy with respect to any other breach or failure by the other party. The express waiver by a party of any right or remedy in a particular instance will not constitute a waiver of any such right or remedy in any other instance. All rights and remedies will be cumulative and not exclusive of any other rights or remedies.
13.9 Payment Due Dates
Payment Terms: All invoices issued by the Company are due and payable upon receipt with a specified due date (“Due Date”).
Late Payment: Any payment not received by the Company by the Due Date shall be considered past due (“Past Due”).
13.10 Interest on Past Dues
Interest Rate: Past Due amounts shall accrue interest at a rate of twelve percent (12%) per annum from the Due Date until the date payment is received by the Company.
Calculation of Interest: Interest shall be calculated on the basis of a 365-day year and shall be compounded monthly.
This Master PROFESSIONAL SERVICES Agreement is EXECUTED on the dates indicated below.
“Tahoma Tech Solutions”
TAHOMA TECH SOLUTIONS LLC, a Washington limited liability company
By its manager
Nick Knutzen, CEO