This Master Services Agreement (“Agreement”) is entered into with Arcalea LLC, an Illinois limited liability company with its principal office at 73 W. Monroe Street, Chicago, IL 60603 (“Arcalea”). Arcalea and Client may be referred to collectively as the “parties” and each a “party”.
- Services. Arcalea will provide to Client and Client will purchase from Arcalea certain services (the “Services”) as described in one or more Statements of Work (each, a “SOW”). All SOWs will be issued for work. Each SOW that is executed by the parties forms a separate agreement and incorporates by reference all of the terms of this Agreement, including any amendment.
- Payment Terms.
- As consideration for the Services, Client shall pay the fees set forth in the applicable SOW. Unless otherwise provided in the applicable SOW, all fees will be due and payable within fifteen (15) days of the invoice date. All payments due hereunder will be paid in U.S. dollars (USD) via wire transfer or ACH payment.
- Arcalea may identify and perform additional moves, adds and changes (“MAC”) on the Client’s behalf from time to time. Arcalea will notify Client of all fees and expenses related to MAC and such charges will be included on Arcalea’s monthly invoices.
- For any payments not received within the time provided herein, Client will be charged a late fee equal to the lesser of 1.5% per month or the maximum amount permitted by law. Client will reimburse Arcalea for all costs incurred in collecting any late payments, including, without limitation, collection agency and attorneys’ fees. Without waiving any other remedies available to Arcalea under this Agreement or law, Arcalea may suspend or terminate the Services if Client fails to pay any fees when due hereunder. In the event Client fails to make timely payments, Arcalea will have the right to revise these payment terms, including requiring advanced payment for Services.
- Client shall be responsible for the payment of all taxes to the appropriate taxing authority, including without limitation sales, use or other similar state or local taxes, arising from or in relation to this Agreement or the Services, other than taxes based on Arcalea’s net income.
- Reimbursable Expenses. Client will reimburse Arcalea for all reasonable and actual expenses incurred during the performance of the Services. Any reimbursable expenses shall be paid within fifteen (15) days of the invoice date and such invoice will be accompanied by receipts and reasonable supporting documentation. As used in this Agreement or any SOW, expenses shall include, without limitation, travel and lodging, parking, meals, and other reasonable expenses.
- Term; Early Cancellation.
- The term of this Agreement is one year commencing as of the Effective Date (“Initial Term”). Thereafter, this Agreement shall automatically renew from year to year (each yearly extension, a “Renewal Term”) until it is terminated by either party by written notice not less than ninety (90) days’ before the end of the Initial Term or Renewal Term, as applicable (the Initial Term and Renewal Term are collectively referred to as, the “Term”). Notwithstanding the forgoing, either party may terminate this Agreement and/or an applicable SOW without such 90-day notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving notice of the breach. For the avoidance of doubt, Client’s failure to pay fees in a timely manner constitutes a material breach of this Agreement.
- If Client cancels the Services prior to the end of the Initial Term or fails to provide the requisite notice to terminate this Agreement as provided in Section 4(a), all outstanding payments through the date of cancellation shall become due immediately and any costs or expenses incurred by Arcalea prior to or as a result of such early cancellation shall be fully reimbursed to Arcalea within fifteen (15) days of the cancellation date. Client will be charged an early cancellation fee, the amount of which shall be the average invoice amounts for Services performed in the immediately preceding three (3) months.
- Changes to Statements of Work. Client acknowledges that the terms set forth in each SOW are reasonable estimates based on best available information and may change from time to time. In the event that Client requests services that are materially outside of the scope of the applicable SOW, the parties must amend the relevant terms of the SOW. Any amendments to a SOW must be agreed to in writing by both parties in order to be effective. This Section 5 is not applicable to MAC as described in Section 2(b).
- Data and Analytics; No Warranty. Arcalea may provide Client with dashboards, metrics and analytics which include data representations of real-time and/or historical information. While the data represented may be either publicly or privately available Client data, any representation, reproduction, presentation of, or manipulation of that data is provided to Client as informational only and proprietary to Arcalea in its representation. Arcalea makes no warranties as to the integrity, timeliness or accuracy of such data representations and Client holds harmless Arcalea for any representations or actions it may take upon the stated data and information herein. In addition, any and all visual representations provided by Arcalea are done so exclusively for evaluation purposes and are not included as part of deliverables or Services.
- Ownership Rights.
- Upon full payment of the fees due to Arcalea hereunder, Arcalea will assign to Client all rights, title and interest in and to the Work Product. After the Work Product is accepted and implemented by Client, Arcalea may display all completed Work Product in its work portfolio in print, digital and online formats for its promotional purposes. Client grants to Arcalea a limited license to display the completed, accepted and implemented Work Product solely for such purpose. As used in this Agreement, “Work Product” means all documentation, plans, materials, reports, dashboards, visualizations, artwork, drawings, computer programs or other information produced by Arcalea on behalf of the Client under this Agreement, other than the Arcalea IP (as defined below).
- Notwithstanding the forgoing, prior to and during the Term of this Agreement, Arcalea may use or disclose to Client certain information, know-how, techniques, methodologies, accounting, records, reports, logs, processes, requirements, designs and specifications ("Arcalea IP") to enable Client to perform its activities related to the Services. Arcalea is and shall remain the sole owner of the Arcalea IP and, except as agreed to by Arcalea, Client shall have no right to review or request the Arcalea IP. Arcalea grants to Client, a perpetual, non-exclusive, non-transferable, non-assignable, world-wide, royalty free license, to use such Arcalea IP for the sole purpose of the lawful use of the Work Product and any modifications thereto.
- The parties understand that either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary and confidential information that if disclosed would cause irreparable harm to the Disclosing Party (“Confidential Information”). The parties hereby agree: (i) not to use such Confidential Information for any purpose other than to perform its obligations under this Agreement; (ii) not to disclose such Confidential Information to any person or entity, except for Receiving Party’s officers, directors, employees, attorneys and agents (collectively, “Representatives”) who need to know such Confidential Information and who are bound by the confidentiality terms of this Agreement; and (iii) to protect and safeguard the Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. As used in this agreement, “Confidential Information” shall include Arcalea’s costs to perform the Services, which Arcalea will not be required to disclose to Client.
- Confidential Information does not include any information that: (i) is or becomes publicly available through no fault of Receiving Party; (ii) becomes rightfully known by the Receiving Party from a third party with no confidentiality obligation to the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Confidential Information. In addition, notwithstanding the fact that the information may be Confidential Information, any information which is required to be disclosed by applicable law or judicial or governmental authority shall not be subject to the restrictions set forth in this Section 8, provided that Receiving Party gives prompt notice of the same to the Disclosing Party in order to, where practicable, seek a protective order and provided further that the information disclosed is only that information expressly required to be disclosed by law or judicial or governmental authority.
9. Exclusivity. During the Term, Arcalea will be the exclusive provider of the Services. Client will not solicit or accept similar services from other providers without the prior written consent of Arcalea.
10. Infrastructure. Unless otherwise provided in a SOW, Arcalea will not be liable for the Client’s infrastructure or technical environment in which any digital properties are or will be hosted. Client will use commercially reasonable efforts to keep its database and systems up to date.11. Miscellaneous.
- Notices. Unless otherwise provided herein, any notice or other communication to be given in writing under this Agreement will be deemed to have been given by either party to the other party upon the date of receipt, if hand delivered, or one business day after deposit with a national overnight courier for next business day delivery at the addresses set forth on the first page hereof, or upon the date of electronic confirmation of receipt of an email. A party may change its address for notices by providing written notice to the other party.
- Governing Law/Venue. This Agreement will be governed by the laws of the State of Illinois, without regard to conflict of laws principles. Each party irrevocably and unconditionally agrees to be subject to the jurisdiction of the state and federal courts sitting in Cook County, Illinois.
- Conflict Resolution. The parties agree to make a good faith effort to resolve any controversy, breach or claim arising out of or relating to this Agreement or SOW in an amicable and expeditious manner, so as to avoid unnecessary losses or delays. If such good faith negotiations fail, the dispute shall be referred to mediation before and as a condition precedent to the initiation of any adjudication including arbitration or litigation. If the parties are unable to mutually agree on a mediator within thirty (30) days of the commencement of the controversy, then either party may request that the Center for Conflict Resolution in Chicago, Illinois, select a candidate. Any mediation shall be held in Chicago, Illinois and the cost of any proceeding shall be determined during the mediation.
- Assignment. This Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns. Neither party may assign its rights or delegate its duties under this Agreement (whether directly or indirectly, by operation of law or otherwise) without the prior written consent of the other party; provided, however, that Arcalea may assign its rights and obligations under this Agreement to its affiliates without such consent, but with written notice to Client. Any purported assignment of rights or obligations, except as expressly permitted herein, will be null and void.
- Severability. If any term or provision of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect any other term or provision of this Agreement.
- Relationship of Parties. The parties acknowledge that Arcalea is an independent contractor. Nothing in this Agreement or any SOW will be construed as creating a partnership, joint venture, agency or fiduciary relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
- Amendments/Modifications. This Agreement may be amended or modified only by a separate writing signed by both parties.
- Force Majeure. Arcalea shall not be held liable for any delay or failure in performance of its obligations under this Agreement from any cause beyond its reasonable control, including acts of God, acts of civil or military authority, delay or failure to receive any required government approvals, embargoes, epidemics, war, terrorist acts, riots, strikes, fires, explosions, earthquakes, floods, power blackouts affecting facilities, or delays caused by Client’s inability to secure proper the infrastructure or technical environment for the Services (a “Force Majeure Event”).
- Conflicting Terms. If there is an inconsistency between the terms of this Agreement and the terms of an SOW, the terms of this Agreement shall control, unless the SOW expressly amends or disclaims the conflicting language.
- Counterparts. This Agreement may be executed in two counterparts, which together shall constitute but one and the same instrument. Electronic signatures transmitted via facsimile or email shall constitute originals and be binding for all intents and purposes.
- Waiver. A waiver by either party of any term or condition of this Agreement in one or more instances must be in a signed writing and will not constitute a permanent waiver of the term or condition or any other term or condition of this Agreement or a general waiver.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior oral or written agreements between the parties concerning the subject matter hereof.