This Master Services Agreement (“Agreement” or “MSA”) is a legal agreement between Resource Hero LLC, a limited liability company with its principal place of business at 59 Van Lieus Road, Ringoes, NJ 08551 (“Resource Hero” or “Company”), and the entity or individual that has agreed to the terms of this Agreement (“Client”).
WHEREAS, the Company offers consulting services in the field of Salesforce.com implementation and customization.
WHEREAS, the Client desires to retain the services of the Company to render consulting services according to the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises made by the parties hereto, the Company and the Client (individually, each a “Party” and collectively, the “Parties”) covenant and agree as follows:
1. Services
1.1. Discovery Call: Upon initial contact and interest, a discovery call will be scheduled between the Parties. During this call, the Client will share their requirements, and Company will pose clarifying questions to understand the scope and specifics of the desired work.
1.2. Scope & Estimate: Following the discovery call, Company will define the scope of the work based on the information provided and any subsequent clarifications. An estimate detailing the anticipated costs and timelines for the completion of the work will be prepared and shared with the Client.
1.3. Agreement & Invoice: If the Client agrees to the proposed estimate and wishes to proceed, the Company will then issue an invoice for the estimated amount. Work on the project will commence only upon receipt of payment in full or as otherwise agreed upon in writing.
1.4. Statement of Work (SOW)
1.4.1. Creation and Scope: All specifics regarding the deliverables, including but not limited to, what will be delivered, detailed estimates, timelines, and any other pertinent details will be documented in a separate Statement of Work (SOW).
1.4.2. Binding Nature: The SOW shall be deemed an integral part of this Agreement, and any obligations or terms mentioned therein shall be binding on both Parties, subject to the terms of this Agreement.
1.4.3. Expiration: All services described within each SOW must be initiated and completed within a period of six (6) months from the SOW’s effective date, unless an extension is mutually agreed upon in writing by both Parties. Services not utilized within this timeframe shall be considered expired and will be forfeited without entitlement to a refund, credit, or roll-over.
1.5. Commencement of Work: Once the aforementioned steps have been satisfactorily completed and payment has been received, the Company will commence work as per the details and timelines specified in the SOW.
1.6. Handover and Testing:
1.6.1. Delivery for Testing: Upon completion or at relevant milestones as outlined in the SOW, the Company will hand over the work or parts thereof to the Client for testing and review.
1.6.2. Feedback Timeline: The Client will have 30 days from the date of handover to conduct testing, identify any defects or non-conformances, and provide feedback to the Company.
1.6.3. Communication: Any identified issues or required changes should be communicated in writing to the Company, detailing the specific nature of the defect or non-conformance.
2. Change Requests:
2.1. Request for Change: If at any point after the SOW has been agreed upon, the Client wishes to change or expand the scope of the services, the Client shall submit a written request detailing the desired changes to Company.
2.2. Assessment: Upon receiving a change request, Company will assess the impact of the proposed changes on the estimated costs, timelines, and any other affected parameters of the project.
2.3. Revised Estimate & Timeline: Following the assessment, Company will provide the Client with a revised estimate and timeline for the project, accommodating the requested changes.
2.4. Agreement to Revised Terms: Should the Client agree to the revised estimate and timeline, both Parties will confirm in writing (which may include email confirmation), and the changes will become a binding part of the existing SOW. Any increase in costs due to the change request will be invoiced to the Client, and work on the changes will commence upon receipt of payment, unless otherwise agreed upon in writing.
2.5. Continuation Without Changes: If the Client does not agree to the revised estimate and timeline or does not wish to proceed with the changes, work will continue under the original terms of the SOW, and the requested changes will be excluded.
3. Representations and Warranties
3.1. Company’s Representations
3.1.1. Non-Infringement and Lawfulness: The Company represents that any materials used in the execution of Services will not (i) knowingly infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (ii) violate any law, statute, ordinance, or regulation.
3.1.2. Quality Assurance: The Company further represents that the Services provided under this Agreement shall be of a professional quality conforming to generally accepted industry standards.
3.1.3. Defect Rectification: Should any part of the Services be found defective or not in conformance with the agreed-upon requirements within 30 days after being handed off to the Client for testing, the Company agrees, at its own cost, to promptly rectify and provide the necessary corrections to ensure the Services meet the stated requirements.
3.2. Client’s Representations: The Client represents that any materials provided to the Company by the Client for use in the execution of Services will not (a) infringe on the intellectual property rights of any third party or any rights of publicity or privacy or (b) violate any law, statute, ordinance, or regulation.
3.3. General Warranty Disclaimer: Except for the warranties set forth in this Agreement, each party expressly disclaims any and all other warranties of any kind or nature, whether express or implied, including without limitation the implied warranties of merchantability and fitness for a particular purpose. The Client is responsible for reviewing Service deliverables to ensure their accuracy and completeness and for the results obtained from the Client’s use of the deliverables. All Services are provided “as is.”
4. Compensation
4.1. 4.1. Invoice: The Company will provide the Client with an Invoice detailing the agreed upon cost for the services and the associated payment conditions.
4.2. Payment Currency: All payments from the Client must be made in US dollars.
4.3. Payment Methods: The Client can fulfill the payment using electronic transactions, ACH, or wire transfers, the details of which will be provided on the invoice.
5. Intellectual Property
5.1. Use of Pre-existing Assets: Both Parties acknowledge that in executing the Services, the Company may use its pre-existing proprietary software, methodologies, tools, designs, know-how, and other intellectual assets, both owned and licensed by the Company (collectively, the “Company Intellectual Property”).
5.2. Ownership and Assignment of Intellectual Property Rights: The Client agrees that all rights to the Company Intellectual Property, whether existing at the commencement of this Agreement or developed during its duration, including but not limited to patent, copyright, trademark, and trade secret rights, shall remain the exclusive property of the Company. Any incidental rights accrued by the Client relating to the Company Intellectual Property are hereby assigned to the Company.
6. Confidentiality and Nondisclosure
6.1. Protection of Confidential Information: Both Parties commit to not use, disclose, or reproduce the other Party’s Confidential Information for any purpose outside of what’s explicitly allowed in this Agreement. Both Parties pledge to uphold and safeguard the confidentiality of such information throughout the duration of this Agreement and beyond, irrespective of when it was shared.
6.2. Definition of Confidential Information: For the purposes of this Agreement, “Confidential Information” refers to any information, regardless of its form (written or verbal), that is disclosed by one Party to the other, and includes but is not limited to:
6.2.1. Client details
6.2.2. Trade secrets
6.2.3. Financial data
6.2.4. Business strategies and plans
6.2.5. Source codes
6.2.6. Machine and operator manuals
6.2.7. Business processes and methodologies
6.2.8. Any other proprietary information related to the disclosing Party’s business operations.
6.3. Exclusions: The obligations stated above do not encompass information that:
6.3.1. Was known to the Company before receiving it from the Client.
6.3.2. Was shared with the Company by a third party, provided this third party wasn’t under any confidentiality restrictions.
6.3.3. Is mandated to be disclosed by law. In such cases, the Company commits to disclose only the legally required information and will endeavor to secure confidential treatment for any such shared information.
6.3.4. Has been revealed with the prior written consent of the Client.
6.3.5. Has been independently conceptualized and developed by the Company, without relying on the Client’s Confidential Information.
7. Indemnification
7.1. Indemnity by Client: The Client agrees to indemnify and hold the Company, including its employees, officers, directors, licensees, successors, and assigns, harmless against any and all damages, liabilities, costs, and expenses (inclusive of legal expenses and reasonable fees of outside counsel) that arise from or relate to third-party claims, actions, or proceedings linked to the Services rendered by the Company under this Agreement.
7.2. Notice and Defense of Claims:
7.2.1. Notice: Should the Company believe it’s entitled to indemnification under this clause, it will swiftly provide the Client with a written notice outlining the nature of the claim.
7.2.2. Defense: The Company reserves the right to participate in the defense of the claim at its own expense, but the Client will have primary control over the defense and any related settlement negotiations. Nevertheless, any settlement that might negatively impact the Company cannot be finalized without the Company’s express written consent, which will not be unreasonably withheld or delayed.
8. Limitation of Liability
8.1. General Limitations:
8.1.1. Exclusion of Certain Damages: The Company shall not be liable to the Client for any indirect, incidental, consequential, or special damages, including but not limited to loss of profits or business interruptions, which arise from or are related to the Services provided or not provided under this Agreement.
8.1.2. Limit on Remedies: In the event the Company is determined to be liable for any loss suffered by the Client, the Client’s exclusive remedy is limited to a refund of the payments made by the Client for the Services, after deducting expenses paid to subcontractors or third parties.
8.1.3. Errors and Omissions: The Company shall not be held responsible for errors stemming from incomplete or inaccurate information provided by the Client.
8.1.4. No Indirect Claims: The Client agrees not to seek damages beyond the contractually stipulated limitations, whether directly or by instigating or supporting actions by third parties.
8.1.5. Force Majeure: The Company is not liable for any damages, costs, or delays due to circumstances beyond its reasonable control, including but not limited to unforeseen site characteristics, policy changes, or changes in third-party terms of service.
8.2. Statute of Limitations: No action arising from any perceived breach of this Agreement or transactions under this Agreement may be initiated by either party more than one (1) year after the cause of action is believed to have arisen, irrespective of the nature of the claim.
8.3. Cap on Total Liability: Aside from the indemnification obligations set forth in this Agreement and barring any breach of confidentiality by either party, the total liability of each party to the other, whether arising out of breach of contract, tort, or otherwise in connection with this Agreement, shall not exceed the total fees payable to the Company by the Client under this Agreement.
9. Status of the Company
9.1. Nature of Engagement:
9.1.1. Contractor Status: The Company is engaged under this Agreement as an independent contractor.
9.1.2. Autonomy in Service Delivery: While the Client may provide general direction regarding the desired outcomes or objectives of the Services, the Client shall not dictate the methods or means by which the Company performs those Services.
9.1.3. No Authority to Bind: Neither Party shall possess, nor shall they purport to possess, the right or authority to bind the other Party to any third-party contract, agreement, or obligation, nor shall they assume or create obligations on behalf of the other Party.
9.2. No Expanded Fiduciary Duties: This Agreement does not expand or amplify any fiduciary duties or responsibilities that the Company might have.
9.3. Freedom to Engage in Other Activities: This Agreement does not restrict the Company’s right to engage in other business activities or provide services to other entities, even if those entities compete with the Client.
10. Terms and Termination
10.1. Term: This Agreement will commence on the date specified below and will remain in effect for one year from that date unless terminated earlier in accordance with the provisions herein.
10.2. Termination for Cause: Either Party may terminate this Agreement upon written notice if the other Party materially breaches any of its obligations hereunder and fails to cure such breach within thirty (30) days following receipt of written notice detailing the breach.
10.3. Termination for Convenience: Either Party may terminate this Agreement at any time upon providing thirty (30) days written notice to the other Party, unless otherwise specified in the Agreement.
10.4. Effects of Termination: Upon termination of this Agreement for any reason, all rights and obligations of both Parties, including all licenses granted hereunder, will immediately terminate, except for any right or obligation which by its nature should survive termination (such as payment obligations, confidentiality obligations, and liability limitations).
10.5. Return of Materials: Upon termination, each Party shall return to the other Party (or at the other Party’s request, destroy) all materials, documentation, and tangible items provided to it by the other Party during the execution of this Agreement.
10.6. Expiration of Purchased Services: Services acquired by the Client under this Agreement shall expire six (6) months from the date of purchase. The Client acknowledges and agrees that upon expiration, any unutilized services will be forfeited without entitlement to any refund or credit.
11. Severability and Enforceability
11.1. Severability: If any provision or part of this Agreement is deemed illegal or unenforceable by a competent court, that provision or part will be severed from the Agreement. The illegality or unenforceability of one part will not affect the remainder of the Agreement.
11.2. Continued Validity: All other provisions or parts will remain in full force and effect, and will continue to be valid and enforceable to the maximum extent permitted by law.
12. Dispute Resolution
12.1. Good Faith Negotiation: In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the Parties hereto shall use their best efforts to settle such disputes, claims, questions, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties.
12.2. Mediation: If the Parties do not reach such solution within a period of thirty (30) days from the time the dispute arose, then, upon notice by either Party to the other, the dispute shall be referred to mediation under the auspices of an accredited mediation institution or mediator agreed upon by both Parties.
12.3. Arbitration: If mediation is unsuccessful in resolving the entire dispute or is unavailable, any outstanding controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by an accredited arbitration institution in accordance with its Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Mercer County, New Jersey, and the arbitration shall be conducted in English.
12.4. Costs: Unless otherwise agreed in writing, each Party shall bear its own costs in the mediation or arbitration, and the Parties shall share equally the fees of the mediator or arbitrators; however, the Party prevailing in arbitration shall be entitled to an award of its reasonable attorney fees and costs.
12.5. Exclusions: Notwithstanding the above, either Party may seek interim or preliminary injunctive relief in a court of competent jurisdiction in Mercer County, New Jersey, if, in its judgment, such action is necessary to avoid irreparable damage or to preserve the status quo.
12.6. Continuation of Services: Unless otherwise agreed in writing, the Parties agree to continue their responsibilities and obligations under this Agreement during any dispute resolution proceedings.
13. Applicable Law and Jurisdiction
13.1. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Mercer County, New Jersey, without regard to its conflict of laws principles.
13.2. Jurisdiction: In the event that any dispute arising out of or in connection with this Agreement cannot be resolved through the dispute resolution procedures set forth above, such dispute shall be brought exclusively in the federal or state courts located in Mercer County, New Jersey. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts.
14. Notifications
14.1. Form of Notification: All notifications, requests, demands, and other communications under this Agreement shall be in writing.
14.2. Methods of Notification: Notifications can be sent by (a) registered or certified mail, postage prepaid, return receipt requested; (b) reputable overnight courier; or (c) electronic mail.
14.3. Addresses for Notification: Notifications shall be sent to the physical addresses as indicated at the beginning of this Agreement or email addresses of the undersigned parties. If a different physical address or email address has been provided by either party during the course of this Agreement’s execution, then notifications shall be directed to that specified address.
14.4. Electronic Communication: For the purposes of this Agreement, electronic communication (including email) is considered a valid form of communication for notifications. However, for legally binding or significant matters related to this Agreement, including but not limited to the termination of this Agreement, the notifying Party must use more formal methods of communication such as registered or certified mail or overnight courier.
14.5. Date of Notification: A notification shall be deemed effective (a) if mailed, on the third day after mailing; (b) if sent by overnight courier, on the date receipt is confirmed by the courier service, or (c) if sent by electronic mail, on the date of such transmission if sent during normal business hours, or if not, on the next business day.
14.6. Change of Address: Either Party may from time to time change its address, email, or other details for notifications under this Agreement by giving the other Party prior written notice of the new information and the date on which it will become effective.
15. Amendments to Agreement
15.1. Modification Validity: No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties.
15.2. Communication of Changes: Any modifications or amendments to this Agreement shall be communicated through the same methods outlined in the “Notifications” section of this Agreement.
15.3. Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior understandings, agreements, representations, and communications, whether oral or written, between the Parties relating to the subject matter of this Agreement. No other service agreement, understanding, or promise shall be taken to exist or be binding on either Party unless it is in writing and signed by both Parties.