Master Services Agreement

THIS MASTER SERVICES AGREEMENT (“MSA”) sets forth the terms and conditions that apply to all purchases of services by Company from HexIQ by means of a Statement of Work (“SOW”) issued by HexIQ to Company. As used in this agreement, “Company” means the entity identified in a SOW as “Company”, and “Consultant” means HexIQ Inc., duly registered and having an address at 795 Congress Street, Portland, ME 04102.

WHEREAS Consultant is skilled in data-driven digital marketing;

AND WHEREAS Company wishes to engage Consultant to provide its services and render deliverables to the Company in accordance with any SOW executed by the parties (such deliverables hereinafter referred to as the “Services,” the “Work” and/or “Project Work Product”);

NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, the parties hereto agree: 

  1. SERVICES
    1. Subject to the terms and conditions hereof, Company hereby engages Consultant as a non-employee  independent contractor with respect to the Work. 
    2. Notwithstanding any contrary provision herein or in a Statement of Work but strictly subject to the provisions of section 10 below, Consultant’s obligation hereunder will be an obligation of means and not of result, pursuant to which Consultant shall deploy its best reasonable efforts in delivering the Services.  Consultant offers no promise, warranty or guarantee that the Services or Project Work Product will achieve a particular result or purpose.
    3. Consultant shall work upon such projects or programs to which it agrees to be assigned by Company’s management and for such price as may be agreed upon and included in writing in a Statement of Work. 
    4. Consultant shall have the discretion to determine the most appropriate manner by which to render the Work in conformity with Company’s specifications as set forth in a Statement of Work.
    5. Consultant shall be responsible for providing the resources, personnel, deliverables, technical knowledge and expertise for the performance of the Work.
  1.   CONSULTANT’S EMPLOYEES AND SUBCONTRACTORS
    1. Consultant’s Employees.  Consultant shall be responsible for any and all persons whom it employs for the fulfillment of the Work.
    2. All Employees.  All non-key employees of Consultant or its non-key subcontractors engaged in the performance of the Work are subject to removal or replacement in Consultant’s sole discretion.
    3. Key Employees.  Consultant shall notify Company of the reassignment or replacement of the key personnel identified in the Agreement who will be performing the Work.
    4. Subcontractors.
      1. Consultant may subcontract any portion of the Work at its sole discretion.
      2. Consultant shall require each subcontractor in its respective subcontract to be bound by the relevant terms and conditions of the Agreement.
      3. Subject to the terms and conditions hereof, Consultant shall at all times be responsible for the Work, and for the acts and omissions of their subcontractors and persons directly or indirectly engaged by its subcontractors.
    5. No competition or interference.  Provided that the parties subsequently execute a Statement of Work, Company, during the term of this Agreement and for a period of twelve (12) months following its termination or expiry, on its own behalf or on behalf of any other person, agrees not to entice or attempt to persuade any person employed by, providing services to, purchasing services or software from, or contracting with Consultant to alter its relationship with Consultant.  The provisions of this paragraph shall survive the termination of this agreement.
  1.   PAYMENTS
    1. In consideration for Consultant’s fulfillment of the Work, provided that this Agreement has not been terminated in accordance with its provisions, Company will pay Consultant such flat rate fee(s) and/or hourly rate as set forth in the Statement of Work invoiced in accordance with its terms and any written amendment thereto.
    2. Where hourly estimates have been listed in the Statement of Work, Company agrees to be billed on an actual as-incurred time and materials basis in accordance with Consultant’s time log.
    3. Any changes to a Statement of Work or other terms and conditions regarding Consultant’s performance of Work under this Agreement will be evidenced by an amendment to the  Statement of Work or this Agreement, as appropriate.  All such amendments shall be executed in writing by the Parties.
    4. Neither Consultant nor any of the persons with whom it deals shall be entitled to any employee-benefit whatsoever otherwise made available to employees of the Company.
    5. All undisputed charges for Work provided under this Agreement shall be paid no later than thirty (30) days after receipt of a valid and supported invoice by Company, or such other delay as may be specified in a Statement of Work.  Company shall promptly notify Consultant of any charges disputed in good faith. 
  1. ACCEPTANCE
    1. In the event of any dispute or issue arising from the Agreement, Company shall timely  provide Consultant with detailed documentary notice providing details thereof and make available the appropriate principal(s) to troubleshoot and resolve the issue.
    2. Quality assurance and issue remediation for deliverables will be factored into the corresponding Statement of Work and will be billed by Consultant on a time and materials basis, which Company agrees to pay upon receipt. The parties shall ensure that any required personnel are available as and when required to assist as appropriate with Consultant’s efforts hereunder.
  1. INDEMNIFICATION
    1. Consultant shall indemnify, defend and hold Company harmless from and against any losses, liabilities, damages and claims, fines, penalties, or interest, excluding reasonable legal fees and costs, directly relating to any valid third party claim related to the Work under the following conditions only:
      1. If the Work or any portion of the Work provided by Consultant knowingly and deliberately infringes upon or violates any trade secret, trademark, trade name, copyright, patent, or other intellectual property rights of any third party; or
      2. Relating to personal injury (including death) or tangible personal property damage or real property damage resulting from Consultant’s deliberate or grossly negligent act.
      3. Limitation.  The indemnities set forth in this section shall be limited by the insurance requirements set forth in the Insurance Section of this Agreement, below.
    2. Infringement.  If the Work or any portion of the Work provided by Consultant becomes the subject of an infringement, including misappropriation, claim or proceeding, Consultant shall, at its option and in its discretion:  (i) secure or provide evidence of its right to continue using the Work; or (ii) if this cannot be accomplished with commercially reasonable efforts, then, at Consultant’s expense, replace or modify the Work to make the Work non-infringing; or (iii) if neither (i) or (ii) can be accomplished by Consultant with commercially reasonable efforts, then, at Company’s election, refund to Company the amount Company paid for the Work upon provision of evidence by Company of removal and/or return of all Work delivered by Consultant.
    3. Indemnification Procedure.  Consultant shall be entitled to have sole control over the defense and settlement of the claim; provided:  (i) Company shall be entitled to participate in the defense of the claim and to employ counsel at its own expense to assist in the handling of the claim; and (ii) Consultant will not settle any claim in a manner involving an admission of guilt or wrong-doing that would impose any obligation on Company or restrict Company’s right, title, or interest in any property or the Work, including all intellectual property and other proprietary rights, without Company’s prior written consent.
    4. No consequential Damages.  Subject to the provisions of section 10 hereinbelow, neither party shall be liable to the other party for any special, indirect, incidental or consequential damages whatsoever, whether in contract (including insurance), or tort (including negligence or strict liability), including loss of use of or under-utilization of labor or facilities, loss of revenue or anticipated profits, or claims from customers, arising out of, in connection with, or relating to the Agreement.
  1. NON-AGENCY

Consultant shall be an independent contractor and shall have no authority whatsoever to enter into any arrangement of any kind whatsoever as an agent or otherwise, for or on behalf of the Company. Consultant shall be solely responsible for the filing, collecting, remitting and payment, as applicable, of any and all taxes imposed on Consultant by any governmental authority including, without limitation, Federal and/or State Sales Taxes, Social Security contributions and workers’ compensation or similar contributions.

  1. NON-DISCLOSURE, CONFIDENTIALITY

Other than as may be directly required for the fulfillment of the Work under a Statement of Work, the Parties agree not to divulge, at any time, any confidential information with respect to the business of the other party including, without limitation, the terms of this agreement and any Statement of Work pursuant thereto, information pertaining to the past, present, future or contemplated operations, plans, financial condition, product development, customers, sources of sales or supply, and/or all other such information including techniques and procedures of whatsoever nature, unless specifically required by law.  Each party hereby acknowledges that disclosure of such information to competitors of the other party or to the general public would cause irreparable harm to the aggrieved party and consents to injunctive relief, without prejudice to any other remedy the aggrieved party may see fit to assert, in the event of any violation hereof.  

  1. WORK PRODUCT AND PROPRIETARY MATERIALS
    1. Project Work Product. All Project Work Product under a Statement of Work shall be owned exclusively by Company and, effective in each case upon its full and timely payment, is hereby assigned by Consultant to Company or its designee.  Consultant is hereby granted a license to such Project Work Product solely for purposes of, and during the term of, carrying out its duties hereunder.  To the extent that Project Work Product is created by the embedding or compiling of Consultant Work Product (as defined below) with newly created Project Work Product, Company’s ownership interest shall not extend to the Consultant Work Product included therein, but shall include the compilation or combination of Consultant Work Product that is a part of the Project Work Product.
    2. Consultant Proprietary Materials. All work product that is not Project Work Product and all pre-existing knowledge, expertise, know-how, formulae, algorithms, techniques, methods, processes and other abilities possessed, owned or developed by Consultant and in existence or yet-to-be created or developed as of the date hereof (collectively, “Consultant Work Product”), shall continue to be owned exclusively by Consultant, and Company shall not have any right thereto. t.
    3. Treatment of and Access to Company Data.  Notwithstanding any contrary provision herein or in a Statement of Work, Company shall be and at all times remain the sole and exclusive owner of its data (including any modification, compilation, or derivative work therefrom and all intellectual or industrial property and proprietary rights contained therein or pertaining thereto) and, effective in each case upon the creation of any such items, Consultant hereby assigns the same to Company as Project Work Product.  Consultant is hereby granted a license to use and copy the Company’s data for purposes of carrying out its duties hereunder during the term and to the extent that Consultant requires access to such data to provide the Services as contemplated by this Agreement during the Term. Consultant shall not commercially exploit the Company’s data, or do any other thing that may in any manner adversely affect the integrity, security or confidentiality of such items, other than as specified herein or as directed by Company in writing.  Consultant may, however, and Company grants specific license to Consultant to use anonymized snippets or extracts of Project Work Product for promotional purposes.
  1. RESOURCE AND WORKPLACE COMPLIANCE REQUIREMENTS

Consultant shall comply, and shall cause its employees, Subcontractors, representatives, agents, and any other person Consultant allows to perform the Work to comply with all Company workplace policies and procedures:

  1. Workplace rules and conduct.  While on Company’s premises and/or when in direct or remote communication, all Consultant and Company personnel shall comply with all Company’s workplace condition rules, as well as with all applicable legislative and regulatory safety requirements, and shall otherwise conduct themselves in a safe, responsible, respectful, professional and courteous manner.  Any inappropriate behavior including but not limited to any behavior deemed to constitute harassment, whether or a sexual or non-sexual nature, shall result in immediate removal of the individual from Company’s project and notification to the Parties without delay.
  2. Site access.  Consultant personnel are not to be onsite at Company premises when not scheduled to perform Work under this agreement; and specifically if provided any identification badge or building access control card, shall only be in areas required for the performance of the Work other than public areas.
  3. Background check and employment eligibility.
    1. Consultant warrants that all of its personnel assigned to perform services on Company’s premises have undergone and passed pre-employment screening.
  1. Limitation of Liability
    1. NOTWITHSTANDING ANY CONTRARY PROVISION HEREIN OR IN A STATEMENT OF WORK AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY UNDERSTANDS AND AGREES THAT (A) CONSULTANT. AND ITS RESPECTIVE OWNERS, OFFICERS, AGENTS, PARTNERS, DIRECTORS AND EMPLOYEES AND (B) ANY THIRD PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES RELATING TO OR RESULTING FROM COMPANY’S USE OR INABILITY TO USE OR INTERPRET THE SERVICES OR FROM ANY ACTIONS CONSULTANT MAY TAKE OR FAIL TO TAKE. THESE INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, COMPANY’S LOSS OF PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF COMPANY’S TRANSMISSIONS AND DATA, AND OTHER TANGIBLE AND INTANGIBLE LOSSES.
      1. CONSULTANT, AND ITS RESPECTIVE OFFICERS, AGENTS, PARTNERS, DIRECTORS AND EMPLOYEES AND ANY THIRD PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES SHALL HAVE NO LIABILITY TO COMPANY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES WHATSOEVER. 
      2. COMPANY RELEASES (A) CONSULTANT AND ITS RESPECTIVE OWNERS, OFFICERS, AGENTS, PARTNERS, DIRECTORS AND EMPLOYEES AND (B) ANY THIRD PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, AND ANY OTHER DAMAGES) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH COMPANY’S USE OF THE SERVICES.
      3. IF COMPANY IS A RESIDENT OF THE STATE OF CALIFORNIA, IN THE UNITED STATES, COMPANY WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
    2. THESE LIMITATIONS APPLY REGARDLESS OF WHETHER THE DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT OR STATEMENT OF WORK, AS THE RESULT OF NEGLIGENCE OR OTHERWISE, AND EVEN IF CONSULTANT OR ITS REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCE WILL CONSULTANT OR ANY OF ITS RESPECTIVE OWNERS, OFFICERS, AGENTS, DIRECTORS, PARTNERS, AND EMPLOYEES BE LIABLE IN ANY WAY FOR ANY USER CONTENT OR ANY USER’S USE OR INTERPRETATION OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, FOR ANY ERRORS OR OMISSIONS IN OR ON THE SERVICES OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICES. 
    3. Indemnity.  Company agrees to indemnify and hold harmless Consultant and its affiliates and their respective officers, agents, partners, directors and employees, from and against any third party claim or demand (including reasonable attorneys’ fees), arising out of or relating to the Services. Company shall cooperate as fully as reasonably required in the defense of any such claim or demand. Consultant reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Company, at Company’s expense, and Company shall not in any event settle any such matter without the written consent of Consultant.
  1. DURATION OF AGREEMENT AND TERMINATION
    1. This Agreement shall commence as of the date first hereinabove written and continue for one (1) year following the termination of the last active Statement of Work hereunder, or in accordance with the provisions and delays described in the remainder of this Section (the “Term”).
    2. Termination for Convenience.
      1. Either party may terminate this Agreement by providing at least thirty (30) days’ prior written notice designating the early termination date.
      2. Company shall complete the payments for the time and material costs incurred by Consultant until the early termination date, and for the portion of any fixed price Services completed by Consultant plus an additional charge equal to twenty five percent (25%) of the price of the proportionate balance of fees following the early termination date.
    3. Termination for Cause.
      1. Either party may terminate this Agreement or any Statement of Work hereunder immediately in the event of the bankruptcy or insolvency of the other party, or in the event of the failure of the other party to comply with any material provisions hereof, upon such other party’s being notified in writing by the party alleging such failure and failing to cure such failure within fifteen (15) days of receiving such notice.  In the event Company exercises  such right of termination, any and all work completed but not yet delivered shall be payable immediately upon delivery thereof by Consultant in compliance with the Statement of Work.
    4. Consultant may terminate this Agreement upon seven (7) days written notice to the Company in the event any undisputed charges remain unpaid beyond the payment terms defined in this Agreement or a Statement of Work.
    5. Consultant agrees to deliver promptly to the Company on termination of this Agreement, or at any time the Company may so request, all property of the Company, memoranda, notes, records, reports, manuals, drawings, blueprints and other documents which it may, at any time, possess or have under its control.  The provisions of this paragraph shall survive the termination of the present Agreement.
    6. Effects of Termination
      1. Remedies.  In the event of a Termination for Cause, the defaulting party shall be liable to the aggrieved party for any actual damages (including costs of cover) resulting from the occurrence giving rise to termination. Consultant’s liability under this Agreement or any Statement of Work for damages of any kind will not, in any event, exceed the most recent monthly prepayment received by Consultant from Company under the associated SOW. Termination shall constitute the Company’s exclusive remedy for any default, and Company shall be deemed to have waived any of its rights accruing hereunder prior to such default. 
      2. Transition.  In the event of any expiration or termination, Consultant shall cooperate reasonably in the orderly wind-down of the Services and/or transition to another provider, with any unforeseen hours billable to Company on an as-incurred time and materials basis.
      3. Survival.  The obligations and rights of the parties pursuant Sections 5, 6, 7, 8 and 10 hereof shall survive any expiration or termination of this Agreement.  Expiration of the Agreement, or termination of less than all of the Agreement and all Statements of Work shall not affect the parties’ obligations under any non-terminated Statement of Work then in effect and as to such then existing Statements of Work, the Agreement shall be deemed to continue in full force and effect until Services under such Statement of Work are completed.
  1. SEVERABILITY

Every provision of this Agreement is intended to be severable. If any provision of this Agreement is determined to be invalid or unenforceable, that provision shall be deemed stricken and the remainder of this Agreement shall continue in full force and effect insofar as it remains a workable instrument to accomplish the intent and purposes of the parties; the parties shall replace the severed provision with a provision that will come closest to reflecting the intention of the parties underlying the severed provision but that will be valid, legal, and enforceable.

  1. ASSIGNMENT OF AGREEMENT

Consultant’s obligation to provide the Work under this Agreement is non-assignable and shall terminate upon HexIQ’s dissolution or, subject to compliance with the provisions of all applicable human rights legislation, disability or other such inability to perform.  However, the parties’ rights and obligations hereunder, other than Consultant’s obligation to provide the Work and, in the case of dissolution of Consultant, the Company’s obligation to pay money shall bind and ensure to the parties’ heirs, executors, administrators, and/or, as the case may be, successors and permitted assigns.  Any assignment of the Agreement by operation of law, order of any court, or pursuant to any plan of merger, consolidation or liquidation, shall be deemed an assignment for which prior consent is required, and any assignment made without any such consent shall be void and of no effect as between the parties.

  1. NOTICES

Except as otherwise indicated herein, any notice or communication to be made or given hereunder shall be in writing and sent by email as well as by personal delivery, transmittal by facsimile or courier with receipted delivery addressed to the respective parties at their addresses on the first page hereof, or to such other address as any party may from time to time notify the other in accordance with this paragraph. Any notice or communication made or given by email accompanied by personal delivery or courier shall be conclusively deemed to have been given on the day of actual delivery thereof.

Email to Consultant shall be sent to partners@hexiq.com.

  1. FORCE MAJEURE EVENTS

Neither party will incur any liability to the other party resulting from any unavoidable delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by unforeseeable and irresistable events, occurrences or forces beyond the reasonable control and without the negligence or other fault of such party.

  1. DISPUTE RESOLUTION
    1. Dispute Resolution Procedure.  Any dispute between the parties as to either the interpretation of any provision of this Agreement or the performance by Consultant or Company hereunder shall be resolved as specified in this section. Pending resolution, Consultant may, at its sole discretion and without penalty, suspend performance of the Work as directed in the Statement of Work, and Company shall continue to make payments for the undisputed charges.
      1. Upon the written request of either party, each of the parties shall appoint a designated representative who, in the case of Company, shall be a Vice President (or more senior corporate officer with appropriate oversight and authority), and in the case of Consultant, a Vice President or Managing Partner, who does not devote substantially all of his or her time to performance under this Agreement, to meet for the purpose of endeavoring in good faith to resolve such dispute.
      2. Such representatives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute promptly in a mutually reasonable manner and without the necessity of any formal proceeding relating thereto.
      3. If any dispute arises between the parties, and the disputed matter has not been resolved by the designated representatives within five (5) Business Days after such dispute has come to their attention, or such longer period as agreed to in writing by the parties, each party shall have the right to commence any legal proceeding as permitted by law.
    2. Agreements in Writing.  No agreement achieved under this dispute resolution process shall be binding on either party unless set forth in a writing executed by the parties hereto.
    3. Consultant’s Option. Notwithstanding any contrary provision or remedy herein or in a Statement of Work, Consultant at any time and without recourse by Company may, in its sole discretion, refund any sums received from Company under the then-current Statement of Work and terminate this Agreement.  Such refund and termination is at Consultant’s sole and final discretion and shall be binding and final upon Company.
  1. ENTIRE AGREEMENT; SPECIFIC TERMS OF STATEMENT OF WORK TO GOVERN

This Agreement contains the entire agreement with respect to the subject matter hereof, superseding any and all prior agreements and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect.

This Agreement will be superseded and governed in the event of a conflict between its terms and those contained in a Statement of Work, Change Request or other document. 

Notwithstanding any contrary provision, Consultant reserves the right to modify any or all of the terms and conditions hereof at any time upon written notice to Company. Company may reject any such modification by terminating the associated Statement of Work without penalty, provided that such termination is in accordance with the provisions of Section 11 hereof.

  1. LAWS APPLICABLE; WAIVER OF JURY TRIAL

This Agreement is  governed by and construed in accordance with the laws of the State of Maine and the laws of the United States of America applicable therein.  Each party hereby waives its right to a jury trial in connection with any dispute or legal proceeding arising out of this agreement or the subject matter hereof.