Terms of service.
The agreement between Client and BIGFOOT TECHNOLOGIES consists of this MSA, as well as additional agreements between the Client and BIGFOOT TECHNOLOGIES including, but not limited to, executed Statements of Work (each a “SOW”), service agreements, bids, proposals, community standards, commercial terms, advertising policies, and payment terms that BIGFOOT TECHNOLOGIES may provide from time to time (collectively, the “Agreement”). BIGFOOT TECHNOLOGIES reserves the right and ability to make changes to this Agreement and to its offered services, from time to time. The Client agrees that this Master Service Agreement shall supersede any conflicting terms of any SOW, addendums, or ancillary agreements (except as specifically stated therein); notwithstanding the foregoing, all of the documents encompassed in the Agreement shall govern the relationship between BIGFOOT TECHNOLOGIES and Client.
I. PROVISION OF SERVICES.
BIGFOOT TECHNOLOGIES will provide to Client those Services set forth in one or more statements of work (each, a “Statement of Work”), and each SOW shall be attached hereto as Addendum A. Statements of Work shall be deemed accepted and incorporated into this Agreement only if signed by both Parties. BIGFOOT TECHNOLOGIES shall provide the Services in accordance with the terms and subject to the conditions set forth in each relevant Statement of Work and this Agreement.
II. FEES & EXPENSES
A. Invoices and Payment Terms
In return for BIGFOOT TECHNOLOGIES’s performance of its Services, Client shall pay BIGFOOT TECHNOLOGIES in accordance with the payment terms, attached hereto as Addendum. The Parties agree that BIGFOOT TECHNOLOGIES may revise its fees, and in the event of such revision, the parties shall execute a new Addendum to reflect any updated charges.
B. Remedies for Nonpayment
In the event BIGFOOT TECHNOLOGIES, has not received payment from Client after fourteen (14) calendar days past Client’s receipt of an invoice, BIGFOOT TECHNOLOGIES may immediately terminate or suspend work under all SOW(s), in its sole discretion. If BIGFOOT TECHNOLOGIES elects to terminate an SOW, all amounts incurred by Client prior to the termination of the applicable SOW shall become immediately due and payable, in accordance with the provisions of Addendum.
III. TERM & TERMINATION
A. Term
This MSA shall commence on the Effective Date and shall remain in effect until terminated in accordance with this section.
B. Client Termination
Client may terminate this MSA and/or any SOW hereunder at any time by providing BIGFOOT TECHNOLOGIES sixty (60) days’ prior written notice, unless the SOW states otherwise. If Client chooses to terminate prior to completion, BIGFOOT TECHNOLOGIES will stop work under the SOW and the Client will be billed for work completed, as provided in Addendum.
C. BIGFOOT TECHNOLOGIES Termination
BIGFOOT TECHNOLOGIES may terminate this MSA and any SOW at any time and for any reason by providing Client fourteen (14) days prior written notice.
D. Effect of Termination
Termination of this MSA and/or any SOW shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Client of its obligation to pay all fees and expenses, as provided in Addendum.
IV. INTELLECTUAL PROPERTY
A. Limited License
BIGFOOT TECHNOLOGIES hereby grants Client a limited, revocable, non-exclusive, non-transferable except in connection with a permitted assignment in Section IX, royalty-free license to use for its internal business purposes the Deliverables and Services developed by BIGFOOT TECHNOLOGIES for Client under this Agreement and any SOW.
B. BIGFOOT TECHNOLOGIES’ Intellectual Property
BIGFOOT TECHNOLOGIES and its affiliates have created, acquired or otherwise have rights in, and may, in connection with the performance of the services hereunder, employ, provide, modify, create, or acquire or otherwise obtain rights in, various intellectual, industrial and other property, including, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively, the “BIGFOOT TECHNOLOGIES Intellectual Property”).
All rights, title, and interest in the materials, programs, inventions, discoveries, improvements, software, systems, methods techniques and research developed by BIGFOOT TECHNOLOGIES and used in connection with the provision of Services by BIGFOOT TECHNOLOGIES under this Agreement shall be the sole and exclusive property of BIGFOOT TECHNOLOGIES and Client shall have no ownership interest in BIGFOOT TECHNOLOGIES’ Intellectual Property.
V. CONFIDENTIALITY
"Confidential Information" shall mean all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; or (e) is required to be disclosed by law. Each Party agrees to hold the other’s Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with performance of obligations hereunder.
VI. DISCLAIMERS
A. Due to the sophisticated nature of cybercrimes in general, no company, including BIGFOOT TECHNOLOGIES is able to provide a one hundred percent (100%) guarantee against future cyber-attacks. As such, in no event shall BIGFOOT TECHNOLOGIES be liable for any indirect, incidental, special, consequential, reliance or cover damages, or damages for loss of profits, revenue, damage to property or equipment, breaches resulting in loss of data or access to accounts incurred by Client or any third party, whether in action in contract or tort, even if the BIGFOOT TECHNOLOGIES or any other person has been advised of the possibility of such damages. BIGFOOT TECHNOLOGIES's aggregate liability for damages hereunder shall not exceed the total amount of fees paid and/or due by Client under the applicable Statement of Work.
B. BIGFOOT TECHNOLOGIES represents and warrants neither BIGFOOT TECHNOLOGIES nor any of the BIGFOOT TECHNOLOGIES personnel is listed on the United States Excluded Parties List, the HHS Office of Inspector General List of Excluded Individuals/Entities, the United States Department of the Treasury’s Office of Foreign Assets Control’s list of Specially Designated Nationals and Blocked Persons, or any replacement lists. BIGFOOT TECHNOLOGIES further represents and warrants that it searches all such lists when and as recommended by the applicable agencies. BIGFOOT TECHNOLOGIES shall notify Client immediately to the extent the foregoing representations and warranties are or become untrue.
C. BIGFOOT TECHNOLOGIES MAKES NO OTHER WARRANTIES WITH RESPECT TO THE SERVICES OR THE DELIVERABLES OTHER THAN THOSE STATED IN THIS AGREEMENT OR THE SOW, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF THE LAW OR COURSE OF PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR PROFESSION, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
VII. INDEMNIFICATION
BIGFOOT TECHNOLOGIES and Client shall each defend, indemnify and hold harmless (each an “Indemnifying Party”) the other party and its successors, directors, officers, employees or representatives from any loss, liability, damage, cost or expense (including reasonable attorney fees) to the extent arising out of: (i) third party claims of breach of contract, tort, negligence or intentional misconduct on the part of the Indemnifying Party; or (ii) damage to property or personal injury (including death) caused by the Indemnifying Party during the period in which services are being performed by BIGFOOT TECHNOLOGIES pursuant to this Agreement and any related Statement of Work.
VIII. GOVERNING LAW AND VENUE
This agreement shall be governed by, enforced and construed in accordance with the laws of the state of Georgia without regard to its conflict of laws principles. Any party bringing a legal action or proceeding arising out of or relating to this Agreement against any other party shall bring the legal action or proceeding in in any Federal or State Court located in Savannah, Georgia. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
IX. MISCELLANEOUS
A. Notice
All Notice(s) provided for in this MSA shall be given in writing and transmitted by personal delivery or prepaid first class registered or certified mail addressed to the address set forth above or to such other address as either party may from time to time specify in writing (“Notice”).
B. Assignment
Neither party will assign this MSA, in whole or in part, without the other party's prior written consent; provided, however, that either party may assign this MSA and any applicable SOW to any entity that is wholly-owned, directly or indirectly, by such party or to any entity which acquires all or substantially all of the business or assets of such party, without the prior written consent of the other party; in such instance, the assigning party shall endeavor to notify the other party in writing of such assignment. Any attempted assignment of this MSA other than as permitted above will be null and void. This MSA shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
C. Independent Contractor
The relationship of the parties shall at all times be that of independent contractor. Neither party shall have any right, power, or authority to assume, create, or incur any expense, liability, or obligation, expressed or implied, on behalf of the other party, except as expressly provided herein. This MSA is not intended to be nor shall it be construed as a joint venture, association, partnership, or other form of a business organization, agency relationship, or employment relationship.
D. Client Representative
An internal project manager shall be designated by the Client and shall be responsible for defining and maintaining the Client’s business objectives and requirements, reviewing customizations, facilitating training and administering project implementation.
E. Cooperation
Each Party agrees to cooperate reasonably and in good faith and acknowledges that delays may otherwise result and, whenever practical to do so, shall provide such resources as are reasonable and necessary to facilitate the satisfactory and timely completion of the Services and deliverables.
F. Force Majeure
BIGFOOT TECHNOLOGIES shall not be liable for any failure to perform its obligations under this MSA if prevented from doing so by a cause or causes beyond its control. Without limiting the generality of the foregoing, such causes include Acts of God, or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, acts of terrorism, wars or war operations, restraints of government or other cause or causes which could not with reasonable diligence be controlled or prevented by the BIGFOOT TECHNOLOGIES.
G. Non-solicitation
During the term of this MSA and for a period of one (1) year following termination, Client agrees that it will not attempt to hire, induce, or encourage any employee or contractor to leave the employment or end its relationship with the BIGFOOT TECHNOLOGIES. This provision shall not restrict the right of the Client to hire any employee or contractor who responds to a general publication of prospective employment.
H. Counterparts
This MSA may be executed in multiple counterparts, including any Addendum attached hereto, by facsimile or other electronic transmission, and each full reproduction, including reproductions by photocopy or scan shall be deemed to be an original and all of which together shall constitute but one and the same instrument.
I. Survival
The provisions of the Agreement which by their nature are intended to survive the termination of this MSA shall survive termination of the Agreement and any permitted assignment.
J. Entire Agreement/Amendment
This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous negotiations and agreements, oral or written, between them regarding the subject matter hereof. The Agreement may be amended and updated by the Parties only upon signed agreement of the Parties.
K. Waiver
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
L. Electronic Delivery
The Parties agree that they may decide to deliver any documents related to this Agreement or any notices required by applicable law by email or any other electronic means, and the Parties consent to (i) conduct business electronically, (ii) receive documents and notices by electronic delivery, (iii) sign SOWs and other documents electronically, and (iv) to participate through an online or electronic system established and maintained by the Parties or a third party designated by the Parties. CLIENT ACKNOWLEDGES THAT CLIENT’S ELECTRONIC SUBMISSIONS CONSTITUTE CLIENT’S AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT. CLIENT’S AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS CLIENT WITH THE BIGFOOT TECHNOLOGIES, INCLUDING EACH SOW, AGREEMENTS ON FEES AND CHARGES, NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
M. Satisfaction.
By signing below, the Parties represent, warrant, and agree that they have read this Agreement, understand its terms, and acknowledge it shall be binding upon them.