MASTER SERVICES AGREEMENT
This Agreement is made as of date of the Accepted Quotation, the “Effective Date”, between:
Kearns Technology Inc., 1655 Dupont Street, Suite 101, Toronto, ON M6P 3T1, Canada (”KTI”); and You, the Client with an addres s specified in the Accepted Quotation, (the “PURCHASER”).
This Agreement contains the general terms and conditions under which KTI shall provide software development and support services to the PURCHASER. These terms and conditions are incorporated by reference into, and deemed to be a part of, any subsequent agreement for services made by the PURCHASER and KTI (the “Parties”). Now, therefore, the Parties agree as follows:
1. SERVICES AND DELIVERABLES
1.1 Services. Detailed descriptions of the Deliverables and Services (defined below) to be provided by KTI to the PURCHASER will be confirmed by the Parties by executing a one or more of the following agreements: Accepted Quotation, Service Level Agreement, Scope of Work Agreement, and Resource Agreement. Taken together “Work Agreements” or individually “Work Agreement”.
1.2 Third-Party Hardware and Software. The purchase, license and procurement of all equipment, software and technology in an Accepted Quotation (collectively, the “Acquired IT”) requires your prior approval. You approve the Acquired IT and acknowledge and agree that your sole recourse for any claims or damages arising from or relating to the performance of or deficiency of the Acquired IT shall be against the manufacturer, supplier or developer of such Acquired IT, in accordance with any purchase agreement, license agreement, terms and conditions, end user license agreement or other agreement with such manufacturer, supplier or developer (in each case, a “Supply Agreement”), with the exception only of damages arising directly from the gross negligence or willful misconduct of KTI and its personnel.
1.3 Subordinate Agreements. Upon execution by both parties, the Work Agreement will become a part of and be subject to the terms of this Agreement. KTI shall supply all components identified in an accepted Work Agreement, which may include designs, specifications, materials, reports, interfaces, enhancements, software, documentation, equipment, solutions or systems (“Deliverables”), and shall provide and perform the services described in the Work Agreement (“Services”). KTI shall not have any obligation to provide any goods or services except to the extent described in this Agreement.
1.4 Change Orders. Modification to Deliverables or Services described in the Work Agreement requires written change orders according to Schedule A to this Agreement. A change request, signed by the Parties will become part of the applicable Work Agreement that it amends, and therefore part of this Agreement. The PURCHASER shall be responsible for all fees and costs arising from the Services and Deliverables set out in any change request.
1.5 Acceptance. Unless otherwise specified in the Work Agreement, the PURCHASER has 30 days (“Acceptance Period”) to test Deliverables in accordance with the specifications set out in the Work Agreement (“Specifications”). Failure to notify KTI of non-compliance within 30 days of receipt of Deliverable is considered acceptance (“Acceptance”).
2. FEES
2.1 Fees and Invoicing. KTI’s fees for the Deliverables and Services are detailed in the applicable Work Agreement. KTI shall invoice the PURCHASER for all Services performed by KTI and the PURCHASER shall thereupon pay, fees with applicable taxes, for any Services to be performed by KTI. The amount and frequency will be defined in Work Agreement.
2.2 Expenses. Expenses, such as travel, arising from the performance of the Services will be discussed and agreed to by the parties in the Work Agreement, and such previously agreed upon expenses shall be paid by PURCHASER to KTI.
2.3Late Payments.If the PURCHASER fails to pay any amount due under this Agreement within thirty (30) days of the invoice date and such amount is not disputed in good faith by the PURCHASER, KTI shall charge, and the PURCHASER shall pay, interest on the unpaid invoice amount at the rate of eighteen percent (18%) per annum (1.5% per month), prorated from the date the payment became due until the date on which full payment is made.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue indefinitely until terminated in accordance with this Agreement including applicable Work Agreements have expired or are terminated (“Term”).
3.2 Termination by KTI. KTI may terminate this Agreement or any Work Agreement: (a) at any time effective upon five (5) business days’ written notice to the PURCHASER, if the PURCHASER fails to pay any fees or any other charges when due; (b) at any time, immediately upon written notice to the PURCHASER, if the PURCHASER is subject to any proceedings relating to bankruptcy, insolvency or protection from its creditors, or if a receiver is appointed over all or any material part of the assets of the PURCHASER; (c) at any time upon five (5) business days’ written notice to the PURCHASER, if the PURCHASER is in default of and of its obligations under this Agreement that are not cured within such period; or (d) at any other time upon thirty (30) days’ written notice to the PURCHASER. The PURCHASER may terminate this Agreement or any Work Agreement without cause effective upon at least thirty (30) days’ prior notice in writing to KTI.
3.3 Termination by PURCHASER. The PURCHASER may terminate this Agreement with respect to any Work Agreement, or this Agreement in its entirety (including all Work Agreements) at any time that KTI fails to perform any material obligation under this Agreement or any Work Agreement and such failure continues for more than fifteen (15) business days after written notice thereof.
3.4 Fees Payable Upon Termination. Upon termination of this Agreement, KTI shall have no further obligation to perform any Services or to provide any additional Deliverables under any applicable Work Agreement. The PURCHASER shall promptly pay to KTI: (i) all fees and amounts for Services performed and Deliverables provided up to the effective date of termination; (ii) reimbursement for all pre-agreed costs incurred by KTI up to the date of termination in respect of work in process, including without limitation all salaries accrued to KTI’s personnel, decommissioning and cancellation costs arising from such termination; and (iii) any other termination or cancellation costs or fees arising from such termination.
3.5 Termination Assistance. In the event this Agreement is terminated for any reason, KTI will provide the PURCHASER termination assistance at $175 per hour, both before and after the effective termination date, as reasonably requested by the PURCHASER to ensure that the Services continue without interruption or adverse effect and to facilitate the orderly transfer of responsibility for the Services to the PURCHASER or its designee. The PURCHASER agrees to the prompt payment, or upon the request of KTI payment in advance, of all reasonable charges for Services provided during such transitional period.
3.6 Survival of Obligations. Upon the expiration or termination of this Agreement for any reason, all obligations which expressly or by implication are intended to survive termination of this Agreement shall survive in accordance with their terms and applicable law. Termination of this Agreement will not relieve either party of any obligations arising out of this Agreement or a Work Agreement prior to or upon the date of such termination.
4. CONFIDENTIALITY
4.1 Use and Disclosure. Each party (each a “Recipient”) agrees not to disclose or use at any time, either during or subsequent to the Term, any confidential or proprietary information (“Confidential Information”) of the other party or its affiliates, licensees or associates (each a “Disclosing Party”) of which the Recipient has become aware in connection with this Agreement, except to those particular employees, sub-contractors, agents, representatives, or affiliates who have a need to know the Confidential Information and who are bound to protect the confidentiality of such information.
4.2 Copies. Each Recipient agrees to take all such steps as may be reasonably necessary to prevent disclosure by any of its employees, sub-contractors, agents, representatives or affiliates of the Confidential Information, except as authorized in writing by the Disclosing Party, and agrees not to make copies of any Confidential Information without first receiving written approval from the Disclosing Party.
4.3 Prohibited Use. Neither party shall appropriate any Confidential Information for its own use, nor use Confidential Information in any way inconsistent with the interest of the other party.
4.4 Confidential Information Defined. Confidential Information includes, but is not limited to, any material provided by one party to the other or as a product of KTI’s performance of its Services, and includes any of the following that may be received by KTI or the PURCHASER in writing, orally, electronically, by drawings, by inspection of equipment or software or facilities, or otherwise:
a) information relating to an identified or identifiable individual made available by one party, its personnel or any other individual, including, but not limited, to any customer (“Personal Information”); b) confidential information that the PURCHASER or KTI is required by law or regulation to maintain as confidential; c) internal and external personnel and accounting records and information contained in those records; d) confidential or proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether patentable or copyrightable; and e) New Works (as hereinafter defined) which include all reports prepared by KTI.
4.5 Exceptions. Confidential Information does not include information that: (i) was in the public domain at the time it was disclosed; (ii) becomes part of the public domain without breach of this Agreement; (iii) is disclosed with the written approval of the other party; (iv) was independently developed by the receiving party; (v) is or was disclosed by a third party without an obligation to keep such information confidential; (vi) is required to be disclosed by law or by judicial order, provided that the receiving party shall give the disclosing party prompt written notice of such required disclosure in order to afford the disclosing party an opportunity to seek a protective order or other legal remedy to prevent the disclosure.
4.6 Return of Property. Each party, as a Recipient, agrees that all Confidential Information of the Disclosing Party in any form, even if the Recipient has created or otherwise been involved in the development of the same, are and will remain the exclusive property of the Disclosing Party. Each Recipient agrees, upon request or on the expiration or termination of this Agreement to return to the respective Disclosing Party all Confidential Information and shall destroy all reports, compilations and aggregations that contain Confidential Information.
4.7 Breach of Confidentiality. A breach of this Section 4 would cause serious and irreparable harm to the Disclosing Party which could not be compensated adequately by monetary damages. The parties acknowledge and agree that the Disclosing Party may enforce this Section 4 by injunction or specific performance upon application to a court of competent jurisdiction without proof of actual damage, and despite that damages may be readily quantifiable, and the Recipient will not plead, and the Recipient will not permit any of its representatives to plead, sufficiency of damages as a defence in the proceeding for injunctive relief.
5. INTELLECTUAL PROPERTY
5.1 Pre-Existing Works. All intellectual property and other rights owned by a party or its affiliates or licensors as at the Effective Date (“Pre-Existing Works”) shall continue to be owned by such party and its affiliates or licensors and, except as expressly provided in this Agreement, the other party shall not acquire any right, title or interest in or to such rights. To the extent that any Deliverables or Services include Pre-Existing Works of KTI, KTI shall grant or cause to be granted to the PURCHASER a non-exclusive license for the PURCHASER to use such Pre-Existing Works for the term of this Agreement or an applicable Work Agreement, solely to enable the PURCHASER to use the Deliverables and Services.
5.2 New Works. Upon payment in full by the PURCHASER to KTI of all amounts owing pursuant to a Work Agreement, KTI shall irrevocably assign to the PURCHASER all rights, title and interest in and to all Deliverables (including all intellectual property rights therein), that are conceived, created, invented, authored, developed or reduced to practice by KTI for the PURCHASER in connection with a Work Agreement (collectively, “New Works”). For greater clarity, until such time as the PURCHASER has paid all amounts owing under a Work Agreement and the applicable Assignment Fee, the New Works provided by KTI to the PURCHASER are provided based on a licence only. Should the PURCHASER materially breach any provision of this Agreement or default on the payment of any fees payable hereunder, the PURCHASER shall forfeit its licence to such New Works. Upon the PURCHASER’s payment of all amounts owing under a Work Agreement, the New Works shall be the sole property of the PURCHASER and KTI shall irrevocably assign to the PURCHASER all of its right, title and interest, in Canada, U.S. and Worldwide, in and to the New Works and all intellectual property and other rights relating thereto, and KTI shall waive all moral rights to such New Works. KTI agrees to cause its employees and subcontractors to execute assignments, moral rights waivers and other documents to ensure the PURCHASER’s ownership of the New Works as contemplated herein.
5.3 Intellectual Property Rights Notices. Unless agreed to in the Work Agreement, the PURCHASER is prohibited from removing or altering any notices of intellectual property or ownership embedded by KTI in any Deliverables provided pursuant to this Agreement.
6. WARRANTY
6.1 KTI Representations and Warranties. KTI represents, warrants and covenants that:
a) the Deliverables and Services will not infringe any intellectual property rights, contractual rights or other proprietary or personal rights of any person; b) the Deliverables and Services will be produced and performed in a timely, professional, diligent and competent manner by personnel appropriately trained; c) in the course of producing and performing the Deliverables and Services, KTI will comply with applicable law.
6.2 Breach of Warranty. In the event of a breach of Section 6.1, KTI shall at its expense, promptly remedy the breach which may include correcting the Deliverable or re-performing the Services at no additional charge, or refund to the PURCHASER all amounts paid for the failed Deliverable or Service and all other Deliverables and Services materially or adversely affected.
6.3 Modifications/Alterations of Deliverables. Notwithstanding the foregoing, the PURCHASER shall not modify or make or permit any alterations or modifications to any Deliverables provided by KTI to the PURCHASER. Any modifications to, misuse of, or failure to maintain the hardware or software included in the Deliverables or otherwise provided by KTI to the PURCHASER will invalidate and cancel all warranty obligations of KTI in respect thereof. Likewise, in no event shall KTI be responsible for any defects, damages or claims arising from improper installation of any Deliverable not installed or provided by KTI to the PURCHASER, failure to operate the Deliverable or any related systems in accordance with applicable user documentation, any combination of the foregoing with any software, hardware or technology not provided by KTI to the PURCHASER, or any damage caused by abuse or abnormal use of the Deliverable.
6.4 Responsibilities of PURCHASER. PURCHASER shall be responsible for:
a) furnishing KTI with all information reasonably requested by KTI for the performance of the Services and production of the Deliverables to be provided by KTI as specified in this Agreement; b) providing KTI with appropriate and reasonable access to the relevant resources to enable KTI to fulfil its obligations under this Agreement; c) providing to KTI an internal contact to ensure the provision of all necessary information as well as physical access to the sites and resources;
d) providing KTI with workspace sufficient to allow KTI’s personnel to perform onsite tasks required under this Agreement, if applicable; e) purchasing and keeping active all warranties, licensing, subscriptions and support agreements for all hardware and software covered by this Agreement; f) providing to KTI and its personnel and subcontractors such access to the PURCHASER’s IT infrastructure as is reasonably required by KTI for the purposes of providing the Deliverables and Services and performing its obligations and responsibilities under this Agreement, provided that KTI shall: (i) use its best efforts to minimize the interruption or inconvenience to the PURCHASER and its employees; and (ii) comply with, and cause any subcontractor or personnel accessing the PURCHASER’s website or IT infrastructure to comply with all reasonable policies and procedures; g) providing any components and content to be supplied by the Client or its suppliers or service providers that is necessary in order for KTI to complete its work required under this Agreement and any Work Agreement, and ensuring such components and content are provided in a timely fashion, are functional, and comply with any technical requirements set out in the applicable Work Agreement.
7. GENERAL
7.1 Force Majeure. Neither party hereto shall be liable for any failure to perform its obligations under this Agreement (other than the obligations regarding payment and confidentiality) if such failure is caused by acts of God, earthquake, war, attack, strikes, revolutions, laws, or governmental regulations or other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. The party facing an event of force majeure shall use reasonable efforts to minimize its effects and shall promptly notify the other party in writing of any such case of force majeure.
7.2 Governing Law. This Agreement shall be construed and controlled by the laws of the Province of Ontario without regard to the choice or conflicts of law provisions of any jurisdiction, and the parties consent to jurisdiction and venue in the courts sitting in and for the Province of Ontario.
7.3 Limited Liability. The total aggregate liability of KTI and its affiliates in connection with or related to this Agreement, the Work Agreements, the Deliverables, the Services and any other matter relating to this Agreement (whatever the basis for the cause of action) shall not exceed the lesser of: (i) the amount of fees paid to KTI for the twelve-month period prior to the date of the event giving rise to the claim; or (ii) one million dollars ($1,000,000.00).
7.4 No Consequential Damages. Except with respect to a breach by a party of Section 4 (Confidentiality) or Section 5 (Ownership of Intellectual Property, or a party’s fraud or willful misconduct, in no event shall either party be liable for any special, punitive, incidental, indirect or consequential damages or damages for lost profits, whether based on breach of contract, tort, or otherwise, and regardless of whether a party has been advised of the possibility of such damages in advance.
7.5 Employee Non-Solicitation. Each party agrees that, from the Effective Date until the date that is twelve (12) months after the expiration or termination for any reason of this Agreement and all Work Agreements between the parties, it shall not hire and shall not directly or indirectly solicit or attempt to hire or divert away from the other party, any of the other party’s employees or contractors, provided, however, that this Section 7.5 does not prohibit the hiring of employees who seek employment in response to a general advertisement for employment nor shall it apply to prevent the employment by one party of any employee whose employment was terminated by the other party.
7.6 Severability and Waiver. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The waiver by either party of a breach of any provision contained therein shall be in writing and in no way shall be construed as a waiver of any subsequent breach of any such provision or the waiver of the provision itself.
7.7 Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, or employee relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Unless otherwise agreed in a Work Agreement, personnel supplied by KTI shall work exclusively for KTI and shall not, for any purpose be considered employees or agents of the PURCHASER. And unless otherwise agreed in a Work Agreement, KTI shall be solely responsible for their supervision, direction, and control and compensation benefits and taxes. Not withstanding the above in this Section 7.7, the PURCHASER is neither liable nor responsible for withholding or deducting any sums for income taxes, health, worker’s compensation and disability insurance coverage, pension or retirement plan or the like.
7.8 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified above or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon delivery by commercial courier; if sent by facsimile, upon confirmation of receipt; if sent by electronic mail upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
7.9 Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be taken together and deemed one instrument. A facsimile signature shall be deemed an original.
7.10 Headings. The captions and headings in this Agreement are inserted only as a matter of convenience and for reference only and in no way define the scope or content of this Agreement or the construction of any provision hereof or of any document or instrument referred to herein.
7.11 Entire Agreement. This Agreement, together with any Work Agreements constitutes the entire agreement between parties with respect to its subject matter, and it merges all prior and contemporaneous communications. It may not be modified except by a written agreement signed by KTI and the PURCHASER by their duly authorized representatives. Unless the context otherwise requires, any reference to “this Agreement” includes all Work Agreements. Any conflict between this Agreement and a Work Agreement shall be resolved in favour of the Work Agreement.
7.12 Time of the Essence. Time shall be of the essence of this Agreement and of every part hereof and no extension or variation of this Agreement shall operate as a waiver of this provision.
7.13 Assignment. The Parties may not assign their rights or obligations under this Agreement without the prior written consent of the other Party.
7.14 Amendment and Waiver. No amendment, discharge, modification, restatement, supplement, termination or waiver of this Agreement or any Section of this Agreement is binding unless it is in writing and executed by the party to be bound. No waiver of, failure to exercise or delay in exercising, any Section of this Agreement constitutes a waiver of any other Section (whether or not similar) nor does any waiver constitute a continuing waiver unless otherwise expressly provided.
SCHEDULE A TO MASTER SERVICES AGREEMENT
1. PROCESS OVERVIEW. This process provides guidelines for managing changes to the terms of the project (scope, assumptions, deliverables, etc.) ensuring that the impact of these changes are understood in both cost and schedule by Kearns Technology Inc as well as the PURCHASER. A change is a proposed modification to what has been agreed to in the Work Agreement. Scope changes, value added features, and omissions of the statement of work are examples of changes that may occur and trigger this process.
2. PROCESS DESCRIPTION
2.1 Initiate the Process. A Change Request is initiated for any modifications to the agreed scope, assumptions, constraints, or obligations of the PURCHASER or KTI. The PURCHASER and Project Manager are identified, and a description of the proposed change is provided.
2.2 Assess Research Impact. An impact analysis will be conducted to estimate the effect of the change on the project. Since this analysis uses project resources, PURCHASER approval of the research cost estimate is required before proceeding. If rejected, the Change Request is closed, and the outcome is documented.
2.3 Conduct Impact Analysis. Assigned team members perform the analysis, detailing the change’s scope, approach, cost estimate, and overall project impact. The Project Manager ensures accuracy and submits the findings to the PURCHASER for approval.
2.4 Change Order Acceptance. Both KTI and PURCHASER will review the Change Request and either approve it for further study or reject it. The cost and terms for further study, if any, will be mutually agreed upon. The study results will determine the impact on project cost and schedule.
After evaluation, both parties will sign the finalized Change Request and, if necessary, an amended Statement of Work. No changes will be implemented without signed approval from both parties.
Upon PURCHASER approval, the change order is signed and processed. If rejected, only the initial analysis cost is incurred, and the request is closed. Final outcomes are documented.
2.5 Implementation. Once accepted, the project plan and schedule are updated, and the change is implemented as per the revised schedule. A new baseline may be created if needed.
Any change to the agreed scope or project targets requires approval from both the KTI and PURCHASER. Authority levels for initiating and approving Change Requests, impact analysis, and implementation will be defined in the Project Plan.
The Change Control Process manages changes to project scope and deliverables throughout the project. It coordinates and documents the development, installation, and evaluation of new features or enhancements. This process applies from project initiation through completion.
2.6 Roles and Responsibilities. The Project Manager oversees the Change Management Process and may delegate tasks. The Account Manager informs the PURCHASER of process requirements and secures necessary approvals.
To download and submit a change request form, please use the following link:
KTI-CHANGE REQUEST FORM
