MASTER AGREEMENT FOR TECHNOLOGY SERVICES
Contract No. ______
This Master Agreement For Technology Services (the “Master Agreement”) is entered into this ____ day of ______, ______(“Effective Date”), by and between ______, located at ______, (“Vendor”) and CHEROKEE NATION BUSINESSES, LLCand any of its Affiliates, a tribal limited liability company (“Customer”), located at 777 West Cherokee Street, Catoosa, Oklahoma 74015. “Affiliate”shall mean, as to a party, any other Person (including such Person’s parent or subsidiaries) that directly or indirectly controls or is controlled by such party. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other ownership interest. For the purposes of this definition, “Person” means any individual, partnership, corporation, limited liability company, unincorporated organization or association, any trust, or any other business entity.
WHEREAS, Customer desires to engage the technology services (the “Services” as hereinafter defined) of Vendor in certain matters; and
WHEREAS, Customer desires to purchase Equipment from Vendor subject to the terms of Attachment A hereto;
NOW, THEREFORE, Vendor and Customer agree as follows:
1.Term of Master Agreement. The term of this Master Agreement shall commence on the Effective Date and shall continue in effect thereafter so long as any Services to be performed as described in any Exhibit “A” remain in effect (“Term”).
2.Vendor Services. Vendor shall prepare a separate summary of Services to be performed (“Exhibit A”) for each Customer request for Services. Each Exhibit A shall be a part of this Master Agreement and incorporated herein. All Exhibit A’s shall be sequentially numbered for ease of identification, e.g., Exhibit A.1, A.2, A.3 and so forth and shall be executed by authorized representatives of Customer and Vendor. Vendor shall provide technology services (the “Services”) as described in Exhibit A attached hereto. Each Exhibit A shall have a term associated with a start and end date for the Services described. From time to time, changes may be made in the Services in the nature of additions, deletions or modifications, which changes will be reflected in an Amendment to Exhibit A.
3. Compensation and Expenses.
A.Customershall pay Vendor the rate(s) specified in Exhibit A for the Services, plus actual and reasonable expenses including but not limited to travel time, travel expenses, office supplies, postage, telephone, and expenses directly related to Services requested by Customer and performed by Vendor.
B.Any reimbursable expenses shall be limited to those expenses approved by an authorized representative of Customer.
C. Customershall supply Vendor, at no additional cost, with office space to the extent any Services are performed on Customer’s premises.
D. Itemized invoices shall be mailed in duplicate to Cherokee Nation Businesses, LLC, Attn: Accounts Payable, PO Box 179, Tahlequah, OK.All invoices must reference Customer’s applicable Purchase Order number. Vendors may be directed to ship small parcels and to include freight as a separate item on the invoice. A copy of the small parcel shipping papers and freight bill will be included with the invoice or the parcel. All amounts stated on each monthly invoice are due and payable within thirty (30) days of the date of the invoice (“Due Date”). Customer agrees to remit payment to Vendor at the address indicated on the invoice.
4.Confidentiality.
A.The parties acknowledge that in the course of performance under this Master Agreement, each party may be provided with or given access to information, in oral, recorded or written form, that is proprietary and confidential to the other party (collectively referred to as the “Confidential Information”), including by way of illustration only, and without limitation:
(i)technical, financial, commercial or other information regarding the business affairs of the other party, policies and procedures of the other party and information concerning the business relationships or business plans of the other party; and
(ii)intellectual property, software products and all related expressions, data, databases, system designs, specifications, drawings, documentation, code, architecture, structure, algorithms, techniques, processes, protocols, product materials, know-how and ideas.
B.When Confidential Information is furnished in a tangible form, the disclosing party shall mark the Confidential Information in a manner to indicate that it is considered proprietary, confidential, a trade secret or otherwise subject to limited distribution as provided herein. When Confidential Information deemed to be proprietary is provided orally, the disclosing party shall, at the time of disclosure, clearly identify the information as being proprietary, confidential, a trade secret or otherwise subject to limited distribution as provided herein.
C.The term “Confidential Information” as used herein shall not include, and neither party shall have any obligations of confidentiality with respect to, information that:
(i)was previously known by either party free of any obligation to keep it confidential;
(ii)is in, or comes into, the public domain, except as a result of a breach of this provision;
(iii) is rightfully obtained, licensed or received from a third party not under any obligation of confidentiality with respect thereto; or
(iv) is independently developed by either party’s personnel independent of any direct or indirect access to the Confidential Information.
D.Without the prior written consent of the disclosing party, the receiving party will not disclose or otherwise make available to any person Confidential Information unless, in the reasonable opinion of counsel for the receiving party, such disclosure is legally required to be made in a judicial, administrative or governmental proceeding or by the rules of any nationally recognized stock exchange upon which shares of the receiving party are traded. In such event, it is agreed that the receiving party will immediately notify the disclosing party of such request(s) or requirement(s), as the case may be, and will cooperate with the disclosing party in any legal undertaking to prevent such disclosure.
E.The receiving party agrees that it will not use Confidential Information for any reason or purpose other than the performance of this Master Agreement. Each party shall disclose the Confidential Information to only its employees, agents or independent contractors who have a need to know and shall assure that said employees, agents or independent contractors are informed of and bound by these confidentiality provisions.
F.It is understood and agreed that in the event of a breach of this Section 4, that irreparable harm may be imminent and that damages may not be an adequate remedy, and that the disclosing party shall be entitled to seek injunctive relief to restrain any breach, threatened or actual, in addition to any other available remedies.
G. Obligations under this Section 4 shall remain in effect for two (2) years following termination of this Master Agreement.
5. Independent Contractor.
A.Vendor hereby declares it is engaged in an independent business and agrees to perform the Services as an independent contractor with full responsibility for the control and direction of its employees and subcontractors. Vendor, in its performance of this Master Agreement, has and hereby retains the right to exercise full control and supervision over the accomplishment of the objectives set forth in the Service Agreement. Vendor shall be obligated to complete the services in a timely manner, unless a specific time schedule is agreed upon in the Service Agreement. Vendor shall not be required to work a specific number of hours per day or specific days of the week. Vendor shall not be an agent, employee or servant for and may not bind Customer. This Master Agreement is not intended to and will not create a partnership, joint venture or agency of any kind or type. It is understood that Vendor is free to contract for similar services to be performed for others during the term of this Master Agreement.
B.Vendor hereby accepts full and exclusive liability for the payment of its employees' compensation and benefits including any and all contributions or taxes for unemployment insurance, old age retirement benefits, pensions or annuities now or hereafter imposed by or under the laws of the United States or laws of the States in which this Master Agreement is to be performed and which are measured by the wages, salaries or other remuneration paid to the persons employed by Vendor on services performed under the terms of this Master Agreement. Vendor further warrants that it will comply with all other applicable federal, state or local laws or regulations applicable to Vendor as an employer regarding compensation, hours of work or other conditions of employment, including those applicable to minimum wage and overtime wages.
C.Neither Vendor, nor its employees providing services under this Master Agreement, shall be entitled to participate in or receive benefits under any Customer programs maintained for its employees, including, without limitation, life, medical and disability benefits, pension, profit sharing or other retirement plans or other fringe benefits. Nor shall Vendor's employees be entitled to any direct or indirect compensation or remuneration of any kind from Customer as a result of the Services performed under this Master Agreement.
6.Compliance with Laws and Regulatory Compliance. Vendor shall comply, at its expense, with all applicable statutes with respect to Worker's Compensation, Employer's Liability, Social Security, Unemployment Compensation and/or Retirement Benefits and other applicable laws relating to or affecting the employment of labor. Vendor shall strictly observe, comply with, and give all notices required by, all local, municipal, state, tribal and federal laws, ordinances, rules, directives, orders, and regulations related to the Equipment and/or Services covered by this Master Agreement, including, without limitation, the Cherokee Nation Employment Rights Act, including all subcontracting and subcontractor payment requirements and Indian preference requirements contained therein, as such Act is administered by the Tribal Employment Rights Office (“TERO”) of the Cherokee Nationand b) the Cherokee Nation Gaming Commission Rules and Regulations and Minimum Internal Control Standards. In the performance of this order, Customer and Vendor and its subcontractor(s) shall, to the greatest extent feasible, give preference to Indian organizations, Indian owned enterprises and individuals as certified by the Cherokee Nation TERO. Additionally, as a result of Vendor’s provision of Equipment and/or Services under this Master Agreement, Vendor may be required to apply for and obtain a gaming license from the Cherokee Nation Gaming Commission (“CNGC”). If Vendor fails to, or is otherwise unable to obtain or maintain its gaming license, upon written notification of such failure from CNGC and/or Customer, Customer may cancel this Master Agreementwithout penalty, paying only for the Equipment and/or Services provided to Customer prior to such notification.
7.Indemnification. Each party (“Indemnitor”) shall protect, defend, indemnify, and hold the other party (“Indemnitee”) harmless from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, punitive damages, liabilities, fines, penalties, losses, costs, and expenses, including without limitation, costs of a reasonable defense and reasonable attorneys' fees (each, a “Claim” and, collectively, the “Claims”) arising out of or resulting from the negligence or willful misconduct of the Indemnitor resulting in personal injury, death, or damage or loss to tangible property. The foregoing indemnification obligations shall include without limitation claims, losses, damages, suits, judgments, fines, penalties, or any other loss including costs, expenses and attorneys’ fees arising out of or occurring in connection with a breach of the terms and conditions of this Master Agreement or any Purchase Order, Vendor’s breach of any warranty made in this order, and Vendor’s infringement or violation of the right of any person, such as under any patent, trademark or copyright laws. All indemnification obligations of Indemnitee shall extend to the officers, directors, employees, and agents of the Indemnitor and shall continue notwithstanding completion, acceptance or payment relating to this Master Agreement.
8.Taxes. Any sales, use, or similar tax imposed on the Services provided under this Master Agreement (excluding taxes based on or measured by Vendor’s net income, and any taxes or amounts in lieu thereof paid or payable by Vendor in respect of the foregoing) shall be added to the invoice and borne by Customer. All amounts paid by Customer to Vendor pursuant to Section 3 of this Master Agreement will be reported as non-employee compensation by Customer to the Internal Revenue Service at the end of each calendar year. Vendor agrees to complete and execute any and all Internal Revenue Service documentation necessary upon the execution of this Master Agreement. If applicable, Customer shall provide Vendor a copy of any appropriate tax exemption documentation for the state(s) into which the goods are to be shipped.
9.Protection and Property; Vendor Policy. Vendor shall continuously maintain adequate protection for all of its work from damage and shall protect Customer's property, and the property and persons of others, from injury or loss arising in connection with this Master Agreement. Vendor shall keep the work site free from accumulation of waste materials, rubbish, and other debris resulting from the Services performed. At the completion of the Services, Vendor shall remove all waste materials, rubbish and debris from the work site, as well as all tools, construction equipment, and machinery and surplus materials, and shall leave the work site clean and ready for its intended use. Vendor shall restore to its original condition those portions of the work site not designated for alteration by this Master Agreement. If Services are to be performed on Customer's premises, Vendor shall comply with all Customer policies, including, but not limited to, working hours and all safety and security regulations and policies in effect at Customer’s facilities, provided such policies are provided to Vendor with reasonable advance notice prior to Vendor’s entry upon the premises. Vendor may not commence work (including on-site deliveries) on Customer’s premises until signed acknowledgement and certificates of Insurance are submitted to Customer in a form acceptable to Customer. By acknowledgement or commencement of work, Vendor accepts Customer’s standard terms and conditions relating to insurance, which are set forth in Attachment D and are incorporated herein by reference.
10.No Waiver. The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision.
11.Choice of Law and Attorney’s Fees.This Master Agreement shall be interpreted and governed under and in accordance with the laws of the jurisdiction in which the goods are delivered or Services are performed without regard to its choice of law provisions. Any disputes arising under this Master Agreement shall be adjudicated in a court of competent jurisdiction. In any legal action initiated under this Master Agreement, the prevailing party in such action, shall be entitled to recovery of all its costs incurred in such legal proceeding, including reasonable legal fees, expenses, court costs, and witness, expert and consulting fees.
12.Notices.
A.All notices to be sent to a party pursuant to this Master Agreement shall be in writing and deemed to be effective upon (i) personal delivery, (ii) three (3) business days after mailing certified mail return receipt requested, (iii) on the day when the notice has been sent by facsimile if during business hours and followed by express mail priority next-day delivery, or (iv) in the case of invoices, upon the Due Date. In each case, the notice shall be sent to the individual identified in this Section 12 at the full business addresses of the other party as it appears herein. The effective date for any notice under this Master Agreement shall be the date of delivery of such notice, not the date of mailing.
B.The full business address for purposes of notice under this Section 12 as well as telephone voice and facsimile numbers shall be:
Cherokee Nation Businesses, LLC______
777 West Cherokee Street______
Catoosa, Oklahoma 74015______
Telephone: (918) 384-7474Telephone: ______
Fax: (918) 266-3984Fax: ______
Attention: Contract ManagementAttention: ______
or at such other address as may be designated in writing to the other party.
13.Assignment. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided, however, either party may assign, without obtaining the consent of the other party, any or all of its rights or obligations hereunder to any parent, affiliate or subsidiary of such party. Any such purported assignment without such consent shall be void.
14.Survival of Provisions. The terms and conditions contained in Sections 4, 7, 15, 16, 20, 22, 23and 24of this Master Agreement as well as Section 6 of Attachment A, respectively, Confidentiality, Indemnification, Warranty, Limitation of Liability, Intellectual Property Warranty,Audit Rights and Records, Improper Payments, Non-Solicitation of Employees and Equipment Warranties are intended to survive the completion of performance, cancellation or termination of this Master Agreement.
15. Warranty. Vendor covenants that the services it shall perform for Customer shall be performed in a manner consistent with the highest level of care and skill exercised by other professionals engaged in the same profession and working under similar circumstances.
16.Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, OR ANY LEGAL THEORY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER’S CUMULATIVE LIABILITY PURSUANT TO ANY STATEMENT OF WORK HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNTS PAID UNDER SUCH STATEMENT OF WORK.
17.Force Majeure. If either party’s performance of this Master Agreement or any obligation hereunder is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, storm or other similar occurrence, any law, order, regulation, direction, action or request of the United States Government or state or local governments, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more said governments, or of any civil or military authority, or by national emergencies, insurrections, riots, wars, terrorist attacks and responses to such attacks, strikes, lockouts or work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays, then such party shall be excused from such performance on a day to day basis to the extent of such prevention, restriction or interference. The party whose performance is affected shall use reasonable efforts under the circumstances to avoid and remove such causes of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes cease. Customer’s obligations to pay for Services already provided hereunder shall not be subject to a force majeure event.