MASTER SERVICES AGREEMENT
Effective Date: ______
Customer Name: ______
Customer Address: ______
______
______
Customer Phone #: ______
Business Type: ______
State of Incorporation: ______
This MASTER SERVICES AGREEMENT (“Agreement”) is entered into this ____ day of ______, 20___ the (“Effective Date”) by and between e-Verifile.com, Inc., a Georgia corporation (“Service Provider”), and the above named customer (“Customer”).
I. SERVICES.
Customer will purchase and Service Provider will provide services as defined in each Statement of Work (“SOW”) entered into between Customer and Service Provider under this Agreement.
II. TERM AND TERMINATION.
Except as set forth herein, this Agreement will become effective on the Effective Date and will continue in full force and effect until it is terminated by either party pursuant to the terms contained herein, or until the expiration or termination of all SOWs entered into pursuant to this Agreement. The term of each SOW will commence on the date indicated therein and will expire or terminate in accordance with its terms. Each SOW shall automatically renew in accordance with its terms, if any. If a SOW does not specify the terms upon which automatic renewal shall occur, then such SOW shall automatically renew upon the occurrence of the expiration date thereof, unless either party upon not less than 60 days written notice to the other party, indicates its intention not to renew such SOW. Notwithstanding the expiration or termination of a SOW, the terms and conditions of this Agreement will remain in full force and effect. In the event this Agreement is terminated, then all SOWs shall be terminated as well.
Either party may terminate this Agreement or any SOW (unless otherwise set forth in such SOW) for convenience upon thirty (30) days written notice to the other party.
Either party may terminate this Agreement or any SOW if the other party materially breaches this Agreement and/or such SOW and such breaching party fails to cure the breach, or implement a plan of action that is mutually acceptable to the parties to cure such breach, within ten (10) days after receipt of written notice from the non-breaching party specifying in reasonable detail the nature of the breach; provided, however, that any such plan of action shall include a timeline for completion of activities under such plan to cure such breach, and if the breaching party fails to meet such timeline, the non-breaching party may terminate this Agreement immediately upon written notice to the breaching party.
Upon the termination of this Agreement, the following shall apply: (a) the parties shall cooperate to effect an orderly, efficient, effective and expeditious termination of the activities hereunder; (b) Service Provider shall return to Customer any and all Customer-furnished items delivered by Customer to Service Provider hereunder; (c) Service Provider shall have no obligation to perform any services hereunder after the effective date of the termination; (d) Customer shall pay to Service Provider any service fees or other amounts payable for the services performed hereunder prior to the effective date of the termination; and (e) the parties' respective rights and obligations under this paragraph, and the covenants contained in this Agreement which, by their terms, require performance by the parties after the expiration or termination of this Agreement shall survive and be enforceable notwithstanding the expiration or termination of this Agreement for any reason whatsoever.
III. NONSOLICITATION.
So long as any employee or independent contractor of Service Provider is engaged in the performance of any services and for a period of one (1) year thereafter, Customer shall not employ or solicit the employment or services of such employee or independent contractor without the prior written consent of Service Provider.
IV. FEES AND PAYMENT.
Fees charged by Service Provider are identified in Exhibit A. Customer shall make payment to Service Provider within thirty (30) days of the date of Service Provider’s invoice. Amounts not paid within ten (10) days of the applicable due date shall accrue interest at a rate of 1.75% per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid, plus all costs of collection, including reasonable attorneys' fees. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Service Provider may, in its sole discretion, suspend delivery of any affected services without notice if Customer fails to pay Service Provider the services fees and until such time as payment has been received by Service Provider.
Customer understands that the charges and rates specified in a SOW or Exhibit A may not include any amounts for taxes including without limitation any and all municipal, county, state or federal sales, excise, personal property, consumption, value-added or other taxes, but excluding any taxes upon the income of Service Provider. To the extent such taxes are or may become due in connection with the services or any payment made or received under any SOW, Customer agrees to pay such taxes. Customer further agrees to reimburse Service Provider for any and all such taxes Service Provider or any of its affiliates is required to pay to applicable taxing authorities on Customer’s behalf.
All amounts payable under this Agreement and any SOW are denominated in United States dollars, and Customer shall pay all such amounts in lawful money of the United States.
V. CONFLICTS.
In the event of a conflict between the provisions of a SOW and this Agreement, the provisions of this Agreement will control. Provided, however, that the provisions of this Agreement will be so construed to give effect to the applicable provisions of the SOW to the fullest extent possible.
VI. DISCLAIMER.
CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY BACKGROUND SCREENING CRITERIA EMBODIED IN THE REPORTS DISTRIBUTED BY SERVICE PROVIDER HAVE BEEN ESTABLISHED BY AND APPROVED BY CUSTOMER AND THAT SERVICE PROVIDER BEARS NO RESPONSIBILITY FOR ESTABLISHING SUCH SCREENING CRITERIA. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR DEVELOPING SUCH SCREENING CRITERIA AND FOR MAKING ANY DECISIONS BASED ON SUCH SCREENING CRITERIA. SERVICE PROVIDER IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR, DEVELOPING SUCH SCREENING CRITERIA OR MAKING ANY DECISIONS BASED ON SUCH SCREENING CRITERIA.
VII. INDEMNIFICATION AND LIMITATION OF LIABILITY.
Indemnification by Service Provider. Service Provider agrees to and does hereby indemnify and hold Customer harmless from and against any and all loss, cost, expense, claim, or liability (including, but not limited to reasonable costs of litigation and attorneys' fees) arising from any claim or action brought by a third person against Customer that arises out of, results from, or is based upon the gross negligence or intentional misconduct of Service Provider.
Indemnification by Customer. Customer shall indemnify, defend and hold harmless Service Provider, its vendors, suppliers, officers and employees from and against any and all loss, cost, expense, claim, or liability (including, but not limited to reasonable costs of litigation and attorneys' fees) arising from any claim or action brought by a third person that arises out of, results from, or is based upon any negligent acts or omission, negligence or intentional misconduct of Customer or its contractors or employees, or any breach of the terms and conditions of this Agreement by Customer.
Limitation of Liability. SERVICE PROVIDER SHALL NOT BE LIABLE TO CUSTOMER, OR ANY THIRD PERSON TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST REVENUES, LOST PROFITS, LOST SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
SERVICE PROVIDER’S LIABILITY HEREUNDER IS LIMITED TO LOWER OF (i) THE SUM OF FIVE HUNDRED DOLLARS ($500.00 US) PER REPORT DISTRIBUTED BY SERVICE PROVIDER HEREUNDER THAT PROXIMATELY CAUSED, OR ALLEGEDLY PROXIMATELY CAUSED, THE COST OR DAMAGE ALLEGEDLY SUFFERED BY CUSTOMER OR (ii) AN AGGREGATE AMOUNT NOT TO EXCEED TWENTY FIVE THOUSAND DOLLARS ($25,000.00 US). THE REMEDIES SET FORTH IN THIS PARAGRAPH AND TERMINATION OF THIS AGREEMENT PURSUANT TO THE TERMS HEREOF ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR CLAIMS OR DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, THE REPORTS, OR THE SERVICES TO BE DELIVERED BY SERVICE PROVIDER HEREUNDER.
VIII. FORCE MAJEURE.
Service Provider shall not be liable for, or be considered to be in breach or default on account of, any delay or failure to perform any services due to any cause or condition beyond its reasonable control (including, but not limited to, any: fire, storm, flood, wind and acts of God or the elements; breakdown of or damage to any equipment, facilities or other property; unavailability of materials, supplies, equipment, transportation, services and other necessary items; and any act or omission of Customer).
IX. NOTICE.
Except as otherwise agreed to in writing by the parties, any notice required or authorized by this Agreement to be given by one party to the other party shall be sent either: (i) electronically by email; (ii) by overnight or 2nd day mail; or (iii) by facsimile transmission with confirmed receipt to the other party at the address or, as appropriate, facsimile number, and marked for the attention of such person as specified in this Agreement. Any notice sent electronically by email shall be deemed to have been received by the other party upon delivery to the email address specified in this Agreement. Any notice sent by overnight or 2nd day mail shall be deemed to have been duly served as of the date of confirmation of such delivery. Any notice sent by confirmed facsimile transmission under this Section shall be deemed to have been duly received by the other party on the date of transmission.
X. CONFIDENTIALITY.
The term “Confidential Information” shall mean this Agreement and all data, trade secrets, business information and other information of any kind whatsoever that one party hereto discloses, in writing, orally, visually or in any other medium to the other party hereto or to which recipient obtains access and that relates to the disclosing party. Each of the parties, as recipients, hereby agree that they shall not disclose Confidential Information of the disclosing party to any third party during or after the term of this Agreement, other than on a “need to know” basis and then only to recipient’s employees, provided that such persons are subject to a written confidentiality agreement that shall be no less restrictive than the provisions of this Section. Recipients shall not use or disclose Confidential Information of the disclosing party for any purpose other than to carry out this Agreement.
Nothing in this Section will prohibit or limit the receiving party’s use of information if: (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the receiving party; (iii) the receiving party can demonstrate such information was in its possession prior to the time of disclosure by the disclosing party; (iv) the information becomes available to the receiving party from a third party which is not legally prohibited from disclosing such information; (v) the receiving party can demonstrate the information was developed by or for it independently without the use of such information; or (vi) disclosure is required under applicable law or regulation or pursuant to a court order or court proceeding, provided that the receiving party promptly notifies the other party of such request or requirement so that such party may seek an appropriate protective order or waive compliance with this Agreement.
XI. CHOICE OF LAW AND VENUE.
This Agreement will be governed by, and construed and interpreted according to, the substantive laws of the State of Georgia, without reference to conflicts of laws principles, and applicable United States federal laws. The U.S. federal courts and Georgia state courts sitting in the jurisdiction of Atlanta, Georgia, United States of America, shall have sole and exclusive jurisdiction over any claims or disputes brought by Service Provider or Customer which may arise out of or in connection with this Agreement. Service Provider and Customer each consent to such forum and waive any and all objections to jurisdiction that they may have under the laws of the State of Georgia or the United States.
XII. Independent Contractor.
Service Provider shall be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement shall not be interpreted or construed as: (i) creating or evidencing any association, joint venture, partnership or franchise between the parties, (ii) imposing any partnership or franchisor obligation or liability on either party or (iii) prohibiting or restricting Service Provider’s performance of any services for any third party.
XIII. Amendment.
This Agreement may be amended, modified, or supplemented only by a writing that refers explicitly to this Agreement and that is signed by authorized representatives on behalf of each party.
XIV. Waiver.
No waiver will be implied from conduct or failure to timely enforce any rights. No waiver will be effective unless in writing, signed on behalf of the party against which the waiver is asserted. No waiver of any breach or condition of this Agreement shall be deemed to be a waiver of any other subsequent breach or condition, whether of like or different nature.
XV. Severability.
If any part of this Agreement is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain fully in force.
XVI. Entire Agreement; Purpose and Effect of Agreement.
This Agreement, together with any SOWs and Exhibits, constitutes the final and entire agreement between the parties relating to its subject matter and supersedes any and all prior or contemporaneous letters, memoranda, representations, discussions, negotiations, understandings and agreements, whether written or oral, with respect to such subject matter, all of the same being merged herein. The SOWs and Exhibits attached hereto are incorporated herein by reference.
XVII. Assignment.