Master Services Agreement

BY ACCEPTING THIS MSA, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS MSA, YOU AGREE TO BE BOUND BY THE TERMS OF THIS MSA. IF YOU ARE ENTERING INTO THIS MSA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS MSA, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES AS APPLICABLE.

This Master Services Agreement (“MSA”), together with the applicable Order Form(s), forms the full legal agreement (“Agreement”), between SOI Solutions, LLC, a Colorado limited liability company (“SOI Solutions”) and the SOI Solutions client that is accepting this Agreement (“Customer”), regarding SOI Solutions’ services to Customer. This Agreement is made as of the date the Customer first completes an Order Form and accepts this MSA (“Effective Date”). SOI Solutions and Customer may each be referred to as a “Party” and collectively the “Parties.”

1. Services.
   • Agreement Structure. This MSA serves as a master agreement with respect to engagements by Customer for SOI Solutions’ services, whether professional services and/or managed services. For each engagement, the Parties will enter into a separate written document (an “Order Form”) that will set forth: (i) the services to be rendered by SOI Solutions (the “Services”) and services duration; (ii) fees and payment terms; and (iii) any other terms pertinent to the specific engagement. The Order Form must be signed by both Parties to be valid.
   • Performance of Services. SOI Solutions shall perform the Services for Customer, as described in the applicable Order Form. SOI Solutions shall determine the methods, means, and manner of performing the Services and perform such Services in a competent, professional, and efficient manner, in compliance with applicable laws and regulations. Except as specified in the applicable Order Form, SOI Solutions’ services are not required to be rendered from any physical location and may be provided from a location selected by SOI Solutions.
2. Deliverables; Intellectual Property (IP).
   • Deliverables Ownership. The deliverables, including but not limited to code, software, reports, documentation, and any other materials created or developed by SOI Solutions for Customer under the Agreement (“Deliverables“) shall be considered “works made for hire” as defined under U.S. Copyright Law. As such, Customer is the sole and exclusive owner of all right, title, and interest in and to the Deliverables.
   • IP Ownership. All copyrights, patents, trade secrets, or other intellectual property rights associated with any ideas, concepts, techniques, inventions, processes, or methodologies developed or created by SOI Solutions in performing Services and creating the Deliverables (collectively, the “Intellectual Property”) remains with SOI Solutions, and SOI Solutions is the sole and exclusive owner of all right, title, and interest in and to the Intellectual Property. SOI Solutions automatically grants, at the time of creation of any Deliverable, without any requirement of further consideration, a perpetual, worldwide, royalty-free license and right to Customer for all such Intellectual Property for use in connection with any Deliverable.
   • General Learning. Customer agrees that SOI Solutions is free to reuse all generalized knowledge, experience, know-how and technologies (including ideas, concepts, processes and techniques) related to the Deliverables or acquired during the performance of the Services (including, without limitation, that which it could have acquired performing the same or similar services for another customer); provided, in no event will SOI Solutions use or disclose any of Customer’s Confidential Information in violation of the Agreement.
3. Warranty; Disclaimer.
   • Warranty. SOI Solutions warrants that: (i) all services performed under this Agreement will be carried out in a professional and workmanlike manner consistent with industry standards; (ii) that all personnel assigned to perform services under this Agreement shall possess the qualifications, experience, and skills necessary to perform the services in accordance with this Agreement; (iii) all services will be delivered in a timely manner and shall meet any agreed-upon deadlines; and (iv) to the best of SOI Solutions knowledge, the Services and Deliverables will be delivered free of viruses, worms, Trojan horses, or other malicious code that could be harmful to the Customer’s systems or data. The warranties set forth in this Section shall be effective for the duration of the applicable Order Form under which the affected Services or Deliverables were provided. In the event of a breach of this warranty, Customer must notify SOI Solutions in writing within the warranty period and such notification must be within a reasonable time frame, not to exceed thirty (30) days from the discovery of the issue. SOI Solutions shall, at its option, either repair or replace the non-conforming services, or refund the fees paid for such Services or Deliverables.
   • Disclaimer; Limitations. Except for the warranties expressly set forth in this Section, SOI Solutions disclaims all other warranties, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose. The warranties provided in this Section do not: (i) cover deficiencies or damages relating to any third-party products or services not provided by SOI Solutions, or any issues resulting from the Customer’s failure to follow SOI Solutions’ documentation; and (ii) apply to any issues caused as a result of the Customer’s actions, including but not limited to, alterations made to the deliverables by Customer without SOI Solutions’ authorization.
4. Fees and Payment.
   • Fees. Customer will pay all fees specified in the applicable Order Form (“Fees”). Unless the Order Form specifies otherwise, Fees are electronically billed or invoiced upon execution of an Order Form and due net thirty (30) days from the billing or invoice date. All amounts payable will be in United States Dollars.
   • Payment Disputes. In the event Customer disputes any portion of the Fees paid or payable by Customer (a “Payment Dispute”), Customer must provide written notice to SOI Solutions within thirty (30) days of the billing (“Payment Dispute Period”) and the Parties will work together in good faith to resolve the Payment Dispute promptly. If Customer does not provide written notice of the Payment Dispute within the Payment Dispute Period, Customer will not be entitled to dispute such Fees paid or payable.
   • Late Payments. Customer’s failure to pay any undisputed amounts due under this Agreement on a timely basis will be deemed a material breach of this Agreement. If any amount owed by Customer under this Agreement is overdue, SOI Solutions may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under the applicable Order Form so that all Fees become immediately due and payable. SOI Solutions will not exercise such acceleration right specified above if Customer timely exercises its right to dispute payments in accordance with this Section. If SOI Solutions must take action to collect overdue Fees, Customer agrees to pay all reasonable costs and expenses incurred by SOI Solutions for collecting such overdue fees including, for example, collection fees, reasonable attorney fees and court costs.
   • Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature on the Service including, for example, value-added, sales, use, or withholding taxes assessable in any jurisdiction whatsoever (collectively, “Taxes”). Customer is, if applicable, responsible for paying all Taxes associated with its purchase(s) of the goods or services hereunder, excluding any taxes that relate to the income, property, or payroll of SOI Solutions. If Customer does not provide SOI Solutions with a valid tax exemption certificate authorized by the appropriate taxing authority and SOI Solutions pays Taxes for which Customer is responsible under this Section, SOI Solutions will bill Customer and Customer will pay that amount to SOI Solutions.
   • Reimbursable Expenses. Customer agrees to reimburse SOI Solutions for all reasonable and pre-approved out-of-pocket expenses that are directly related to the performance of the Services under this Agreement. Such expenses may include, but are not limited to, travel, accommodation, and meal expenses; postage; courier fees; and other necessary costs incurred by SOI Solutions. All expenses must be pre-approved in writing by Customer. SOI Solutions shall provide Customer with detailed receipts and any other required documentation to support the expenses incurred. SOI Solutions shall submit expense reports, in a format acceptable to Customer, within thirty (30) days of incurring the expense. Customer shall reimburse SOI Solutions for approved expenses within thirty (30) days of receipt of the expense report and supporting documentation. SOI Solutions agrees to make reasonable efforts to keep expenses to a minimum and shall comply with any expense policies provided by Customer. Customer reserves the right to refuse reimbursement for any expenses that are not in compliance with Customer’s policies or were not pre-approved as required by this Agreement.
5. Confidentiality; Data Security.
   • Confidential Information. “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including, for example, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party without obligation of confidentiality prior to its disclosure by the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without breach of this Agreement or any obligations owed to the Disclosing Party.
   • Protection. The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party may not use any Confidential Information of the Disclosing Party for any purpose except as expressly permitted in this Agreement. The Receiving Party may disclose Disclosing Party’s Confidential Information to its Affiliates, respective officers, directors, principals, employees, attorneys, and accountants (“Representatives”) only to the limited extent necessary to carry out the purpose of this Agreement. Each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business division, or group of such party. To the extent the Receiving Party discloses any Confidential Information of the Disclosing Party to any persons other than its Representatives, as condition precedent to disclosure, such recipient must execute a confidentiality agreement no less protective of such Confidential Information before disclosure is made.
   • Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or court order to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law or court order to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
   • Return of Confidential Information. Upon termination or expiration of this Agreement or upon Customer’s written request at any time during the term of this Agreement, SOI Solutions shall destroy, or return to Customer, all tangible copies of Customer’s Confidential Information and erase all copies in electronic form in SOI Solutions’ possession.
   • Data Security; Breach Notification. SOI Solutions agrees to implement and maintain comprehensive information security policies and procedures that are designed to: (i) ensure the security and confidentiality of Customer data; (ii) protect against any anticipated threats or hazards to the security or integrity of Customer data; (iii) protect against unauthorized access to or use of Customer data that could result in substantial harm or inconvenience to Customer or any data subject; and (iv) ensure the proper disposal of Customer data. These measures will include, but not be limited to, encryption of Customer data in transit and at rest, network security measures, and access controls. In the event of a security breach or unauthorized access to Customer data, SOI Solutions shall promptly notify Customer of the breach and its nature, scope, and potential consequences. SOI Solutions shall take immediate steps to mitigate any harm and prevent any further breach or unauthorized access. SOI Solutions shall cooperate with Customer in investigating the breach and in any remediation efforts.
6. Indemnification.
   • Indemnification by SOI Solutions. SOI Solutions shall indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or resulting from any third-party claim alleging: (i) any claim that the Services or Deliverables provided by SOI Solutions infringe or misappropriate the intellectual property rights of such third party, except to the extent that such claim arises from (a) Customer’s use of the Services or Deliverables in combination with any materials or equipment not supplied or specified by SOI Solutions, if the infringement would have been avoided without the combination with such materials or equipment; (b) modifications to the Services or Deliverables made by any party other than SOI Solutions, if the infringement would have been avoided without such modifications; (c) Customer’s failure to use updated or modified Services or Deliverables provided by SOI Solutions to avoid infringement; and (d) specific compliance with Customer’s specifications or directions, including the incorporation of any materials or processes provided by or requested by Customer, if the infringement would have been avoided without the incorporation of such materials or processes; (ii) any negligent or more culpable act or omission of SOI Solutions (including any recklessness or willful misconduct) in connection with the performance of the Services; or (iii) any bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of SOI Solutions.
   • Indemnification by Customer. Customer shall indemnify, defend, and hold harmless SOI Solutions and its affiliates, officers, directors, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or resulting from any third-party claim alleging: (i) any negligent or more culpable act or omission of Customer (including any recklessness or willful misconduct) in connection with the use of the services or deliverables provided by SOI Solutions; or (iii) any bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of Customer.
   • Indemnification Procedures. Each Party shall promptly notify the other Party in writing of any claim for which such Party believes it is entitled to be indemnified pursuant to this Section. The failure to give prompt notice to the indemnifying Party will not relieve the indemnifying Party of its indemnification obligations under this Agreement, except to the extent that the indemnifying Party demonstrates that the delay materially impairs its ability to defend. The indemnifying Party will have the right to control the defense of any such claim, provided that the indemnifying Party shall not enter into any settlement that affects the indemnified Party’s rights or interests without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party shall provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense, in defending any such claim.
7. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, REVENUE, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO SOI SOLUTIONS UNDER THE ORDER FORM GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT AND THAT THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8. Independent Contractor. It is the express intention of the parties that SOI Solutions perform the Services as an independent contractor. Nothing in this Agreement will in any way be construed to constitute SOI Solutions as an agent, employee, or representative of Customer. Without limiting the generality of the foregoing, SOI Solutions is not authorized to bind Customer to any liability or obligation or to represent that Customer has any authority. SOI Solutions shall be solely responsible for the payment of all federal, state, local, and other taxes and assessments, including, but not limited to, income taxes, payroll taxes, unemployment insurance taxes, and any other taxes associated with the receipt of payment under the Agreement.
9. Non-Solicitation. During the term of the Agreement and for a period of one (1) year thereafter, Customer agrees not to solicit, recruit, hire, or engage any employee, consultant, or subcontractor of SOI Solutions without the prior written consent of SOI Solutions. This restriction shall not apply to any individual who: (i) responds to a general hiring advertisement or solicitation not specifically targeted at SOI Solutions’ personnel; or (ii) has been terminated or otherwise left the employment or contractual engagement with SOI Solutions prior to the initiation of solicitation or recruitment activities by Customer.
10. Term; Termination.
    • Term. This MSA will commence upon the Effective Date and continue until the applicable service term for each Order Form made subject to this MSA has expired, unless each Order Form is earlier terminated in accordance with the terms of the applicable Order Form or this MSA is earlier terminated as set forth herein.
    • Termination for Cause. Either Party may terminate an Order Form or this MSA, effective immediately upon written notice to the other Party, if such party: (i) breaches any provision of the Agreement and does not cure such breach within thirty (30) days of written notice to such party; (ii) breaches a provision of the Agreement for which cure is impossible; or (iii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon the termination of this MSA for any reason, all Order Forms made subject to it shall automatically terminate.
    • Survival. Sections 2 (Deliverables; Intellectual Property (IP)), 3.2 (Disclaimer; Limitations), 3 (Late Payments), 5 (Confidentiality), 6 (Indemnification), 7 (Limitation of Liability), 9 (Non-Solicitation), 10.3 (Survival), and 12 (General), as well as Customer’s obligation to pay any fees applicable to the balance of the Order Form and any other provisions which by their nature should survive, will remain in effect after the termination or expiration of this Agreement.
11. Insurance. SOI Solutions shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability, workers’ compensation, professional liability (errors and omissions), and cyber liability with financially sound and reputable insurers. Upon Customer’s request, SOI Solutions shall provide Customer with certificates of insurance from SOI Solutions’ insurers evidencing the insurance coverage specified in this MSA.
12. General.
    • Governing Law. This Agreement is governed by the laws of the State of Colorado, without regard to principles of conflicts of laws. The Parties consent to the exclusive venue of the state and federal courts located in Denver, Colorado with respect to any dispute arising out of or relating to this Agreement, and each Party irrevocably and unconditionally waives any right to a trial by jury. 
    • Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision will be severed or modified to the minimum extent necessary, and the remainder of this Agreement will continue to be in full force and effect.
    • No Waiver. No failure or delay on the part of either Party in the exercise of any right, power, or remedy under this Agreement, or to insist upon or enforce performance by the other Party of any of the provisions of this Agreement, will operate as a waiver, nor will any single or partial exercise of any right, power, or remedy preclude any other or further exercise, or the exercise of any other right, power, or remedy.
    • Assignment. Neither Party shall assign this Agreement without the prior written consent of the other, which consent will not be unreasonably withheld, except that either party may assign this Agreement without consent in connection with: (i) the sale or transfer of all or substantially all of its business; or (ii) the sale or transfer of substantially all of that part of its business to which this Agreement relates. Each party shall give the other prompt written notice of such assignment or transfer. Any attempted assignment in violation of this Section is void. This Agreement shall inure to the benefit of, and be binding upon, SOI Solutions and Customer, their successors and permitted assigns.
    • Notices. All notices, authorization, and approvals hereunder to Customer will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (ii) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnity claim). Billing-related notices to the Customer will be addressed to the relevant billing contact designated by the Customer. All notices made by Customer to SOI Solutions must be sent to SOI Solutions, LLC, Attn: Notices, 17011 Lincoln Ave., Suite 337, Parker, CO 80134, with a copy to [email protected]
    • Force Majeure. Neither Party shall be liable to the other for any failure or delay to the extent caused by events beyond the first Party’s control (and which could not have been avoided in the exercise of reasonable diligence), including, failures or delays in transportation, equipment failures, labor disputes, accidents, acts of God, or government intervention.
    • Entire Agreement. This MSA and the applicable Order Form constitute the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior and contemporaneous communications, understandings, and agreements with respect to the subject matter herein. In the event of any conflict or inconsistency between the provisions of this MSA and the provisions of an Order Form, the terms of the Order Form shall prevail. No modification or amendment to this Agreement will be valid or binding unless in writing and duly executed by the parties hereto. This Agreement may be executed in separate counterparts, each of which will be deemed an original, but all such counterparts constitute one and the same instrument.