MASTER SERVICES AGREEMENT
This Master Services Agreement (the “Agreement”) is entered into as of the “Effective Date” and is made by and between Client” and U2 Science Labs, Inc. (“UBIX”),(each, a “Party”).
- DEFINITIONS. As used in this Agreement:
1.1 “Confidential Information” means any and all information related to either Party’s business (including trade secrets, technical information, business forecasts and strategies, marketing plans, client and supplier lists, personnel information, financial data, and proprietary information of third parties provided in confidence) that is labeled or identified as “confidential” or “proprietary” or that either Party otherwise knows, or would reasonably be expected to know, should be treated as confidential.
1.2 “UBIX Personnel” means UBIX’s employees, subcontractors, and agents.
1.3 “Deliverables” means the items to be provided or actually provided by UBIX to Client under this Agreement where such items are specifically designated or characterized as deliverables in a SALES ORDER.
1.4 “Intellectual Property” means all algorithms, application programming interfaces (APIs),
apparatus, concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, creative concepts, advertising or marketing copy, graphic designs, works of authorship, and other forms of technology.
1.5 “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works
of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.6 “Services” means all services ordered by Client and provided by UBIX as set forth in a Sales Order (SO).
1.7 “Work Product” means (a) all Deliverables, (b) all Intellectual Property, in any stage of development, that UBIX conceives, creates, develops, or reduces to practice in connection with performing the Services, and/or (c) all tangible embodiments (including models, presentations, prototypes, reports, samples, and summaries) of each item of such Intellectual Property produced in performing the Services.
1.8 “Work Papers” means those internal memoranda and working notes prepared by UBIX during the course of performing this Agreement that serve to substantiate the services performed and/or any Deliverables.
1.9 “Reported Information” means information derived from data that UBIX collects on Client’s behalf contained in reports or user interfaces that UBIX makes available to Client.
1.10 “Sales Order” means a Sales Order (including any exhibits attached to a Sales Order) signed by UBIX and client.
2.1 Sales Order. From time to time, UBIX may submit to Client written Sales Order that contain the terms (including specifications, delivery and performance schedules, and fees) for Services and /or Deliverables that Client desires UBIX to provide.
2.2 Performance of Services. UBIX will perform the Services in accordance with the terms of this Agreement and the applicable Sales Order. UBIX and Client will agree on the location for performance of such services, either UBIX facilities or Client facilities. For work performed in Client facilities, Client will provide office space, computer and network access for UBIX employees.
2.3 Change Proposals. Any changes to the term, deliverables, price or scope of a Sales Order will be documented in a “Change Request” to be signed by both Client and UBIX within an amended Sales Order.
2.4 Acceptance Procedures. Client will have (30) days to evaluate any final Deliverables (the “Acceptance Period”) to ensure that they meet the specifications, requirements, and terms of this Agreement and are of professional, technical, and general quality consistent with industry standards. If Client rejects any Deliverable during the Acceptance Period, UBIX will make best efforts to resolve the issue and resubmit the Deliverable to the Client’s satisfaction. Interim Deliverables will be evaluated by Client within 72 hours.
2.5 Monitoring. UBIX will cooperate with any requests by Client to monitor the Services in order
to verify that such Services are being performed in accordance with this Agreement and in a timely and satisfactory manner. UBIX will use its best efforts to facilitate any such monitoring, including providing access to UBIX’s employees, agents, equipment, and facilities. All documents and materials of Client stored at Client’s facilities will be subject to inspection by Client at any time without notice.
2.6 Additional Agreements. UBIX will ensure that each of its employees and agents who will have access to any Confidential Information or perform any Services has entered into a binding written agreement that prohibits the distribution or sharing of confidential information of Client.
2.7 Personnel. UBIX will use adequate numbers of qualified individuals with suitable training, education, experience and skills to perform the Services. UBIX will determine the methods, details, and means of performing the Services. Specific individuals or job functions may be specified in the applicable SALES ORDER. Client will not control, direct, or supervise UBIX Personnel in the performance of the Services.
2.8 Replacement of Personnel. Except for UBIX Personnel that voluntarily terminate their employment with UBIX, UBIX may not replace UBIX Personnel identified by name in an SALES ORDER without Client’s advance written consent. Client may, in its sole discretion, notify UBIX that Client no longer wishes one of the UBIX Personnel to perform Services. After receipt of such notice, UBIX will immediately remove and promptly replace that person with another person of suitable ability and qualifications. If UBIX has specific performance obligations under a SALES ORDER that are affected by Client-requested personnel changes, the Party’s will equitably adjust such obligations.
Client is not authorized to direct UBIX to terminate the employment (or contract) of any UBIX Personnel, and UBIX will be responsible for any employment actions it may take with respect to such personnel. For any personnel changes under a SALES ORDER at the request of Client, UBIX and Client will agree to a transition strategy which might include a reasonable transition period for the new personnel. The length of the period will be specified in the SALES ORDER, or otherwise will be a reasonable period.
2.9 Subcontracting. UBIX will leverage subcontractors from time to time. All subcontractors will be managed to the same standards of work quality and non-disclosure of proprietary information as UBIX employees.
2.10 Access Rules and Procedures. While on Client premises, UBIX agrees to comply and require its employees and agents to comply with Client’s then-current access rules and procedures, provided that UBIX has been made aware of such access rules and procedures in advance and such access rules and procedures are reasonable, including those procedures pertaining to safety, security, and confidentiality. UBIX agrees and acknowledges that neither UBIX nor any of its employees or agents has any expectation of privacy with respect to Client’s telecommunications, networking, or information processing systems (including stored computer files, email messages, and voice messages) and that the activities of UBIX and its employees and agents, including the sending or receiving of any files or messages, on or using any of those systems may be monitored, and the contents of such files and messages may be reviewed and disclosed, at any time without notice.
- INDEPENDENT CONTRACTOR RELATIONSHIP. UBIX’s relation to Client under this Agreement is that of an independent contractor. Nothing in this Agreement is intended or should be construed to create a partnership, joint venture, or employer-employee relationship between Client and any of UBIX’s employees or agents. UBIX is not the agent of Client and is not authorized, and must not represent to any third party that it is authorized, to make any commitment or otherwise act on behalf of Client. Without limiting the generality of the foregoing:
3.1 Benefits and Contributions. Neither UBIX nor any of its employees or agents is entitled to or eligible for any benefits that Client may make available to its employees, such as group insurance, profit- sharing, or retirement benefits. Because UBIX is an independent contractor, Client will not obtain workers’ compensation insurance on behalf of UBIX or any of its employees or agents.
3.2 Taxes. UBIX is solely responsible for filing all tax returns and submitting all payments as required
by any federal, state, local, or foreign tax authority arising from the payment of fees to UBIX under this Agreement, and agrees to do so in a timely manner. Client is solely responsible for filing all tax returns and submitting all payments by any federal, state, local, or foreign tax authority other than taxesarising from the payment of fees to UBIX under this Agreement.
4.1 Fees. Subject to the terms and conditions of this Agreement, Client will pay UBIX the fees specified in each SALES ORDER (“Fees”) as UBIX’s sole and complete compensation for all Services, Deliverables, and Intellectual Property Rights provided by UBIX under this Agreement. No other fees will be owed by Client under this Agreement.
4.2 Expenses. Expenses will be included in the price estimate for each SALES ORDER and will be incurred by UBIX employees according to the Client’s expense rules and procedures.
4.3 Staff Augmentation. Where a SALES ORDER predominantly provides for human resources as opposed to the deployment of UBIX’s AI Platform, fees shall be on a time and materials basis as specified in the SALES ORDER. UBIX will submit invoices to Client every month for Services delivered.
4.4 Invoicing. Unless otherwise expressly provided in the applicable SALES ORDER or Section 4.3, (a) payment to UBIX of undisputed Fees and undisputed expenses (if applicable) will be due thirty (30)
days following Client’s receipt of the invoice for such Fees and expenses, and (b) UBIX will submit invoices to Client upon completion of the milestones specified in the applicable SALES ORDER or, if no such milestones are specified, on a monthly basis for Services performed in the previous month. UBIX will maintain, in accordance with generally-accepted accounting principles, complete and accurate records of the work performed and expenses incurred sufficient to document the Fees and expenses invoiced to Client for at least one (1) year following the date of the invoice, and will provide Client with such records at Client’s request.
5.1 Use and Disclosure. During the term of this Agreement and at all times thereafter as allowed by law, both Parties will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining express prior written consent on a case-by-case basis, and (d) limit access to the Confidential Information to employees or agents of UBIX who have a reasonable need to have such access in order to perform the Services.
5.2 Standard of Care. Parties will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as they protect their own confidential or proprietary information of a similar nature and with no less than the greater of reasonable care and industry-standard care.
5.3 Exceptions. Each Party’s obligations under Sections 5.1 and 5.2 will terminate with respect to any particular information that the Party can prove, by clear and convincing evidence, (a) they lawfully knew prior to first disclosure (b) a third party rightfully disclosed to Party free of any confidentiality duties or obligations, or (c) is, or through no fault of Party’s has become, generally available to the public. Additionally, each Party will be permitted to disclose Confidential Information to the extent that such disclosure is expressly approved in writing by the other Party, or is required by law or court order.
- NO CONFLICTS. UBIX will refrain from any activity, and will not enter into any agreement or make any commitment that is inconsistent or incompatible with UBIX’s obligations under this Agreement, including UBIX’s ability to perform the Services. UBIX represents and warrants that it is not subject to a contract or duty that would be breached by UBIX’s entering into or performing its obligations under this Agreement or that is otherwise inconsistent with this Agreement.
- WORK PRODUCT
7.1 UBIX Work Papers. UBIX’ Work Papers shall not constitute a Deliverable and shall remain the sole and exclusive property of UBIX, provided that Client shall retain sole and exclusive ownership of its confidential information contained or reflected in the Work Papers.
7.2 Intellectual Property Ownership. Neither the agreement nor its performance transfers any UBIX Intellectual Property from UBIX to Client; and all right, title and interest in and to UBIX Intellectual Property will remain solely with UBIX. Neither the agreement nor its performance transfers any Client Intellectual Property from Client to UBIX; and all right, title and interest in and to Client’s Intellectual Property will remain solely with Client. Client will not directly or indirectly or through any agents copy, modify, disassemble, de-compile, or reverse engineer the Services.
7.3 Information Ownership. Client warrants that it has the right to provide UBIX access to the data it uses in the performance of this Agreement or that is collected by UBIX or otherwise made available by Client to UBIX in connection with the Services (collectively, the “Client Content”), including any data from third parties, such as third-party service providers. As between Client and UBIX, Client owns the Client Content, Reported Information and associated data, and may copy, archive, backup, publish, distribute, and use the Reported Information for any legal purposes. Client hereby grants UBIX, its affiliates and its subcontractors a worldwide, non-exclusive, royalty-free right and license to use, copy, reproduce, display, store, and all Client Content and all Reported Information as necessary to provide the Services to Client. Nothing in this Agreement will limit UBIX’s collection or UBIX’s or its affiliates’ use of any aggregate, anonymous data, statistics, or other information derived from Client Content, Reported Information, or usage by Client of the Services (collectively, “Derived Data”) during or after the term of this Agreement. Any Derived Data used externally by UBIX or its affiliates will not be identifiable as originating from Client.
- UBIX REPRESENTATIONS AND WARRANTIES
8.1 General. UBIX warrants that the Services will be performed in a professional and workmanlike manner consistent with prevailing industry standards. Each party will indemnify and hold harmless the other and its employees and agents from and against any claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real property or tangible personal property to the extent proximately caused by (a) the gross negligence or willful acts or omissions of the indemnifying party, its employees or agents or (b) the failure of the indemnifying party to comply with any applicable laws. The indemnification obligations of the parties set forth in this Section 8 are conditioned upon the indemnifying party being notified promptly in writing of the action and having sole control of the defense and all negotiations for its settlement or compromise. At the indemnifying party’s request, the indemnified party will provide the indemnifying party with information and assistance (at the indemnifying party’s expense) for the defense of such a suit or proceeding including any settlement, and the indemnifying party will pay all damages and costs finally awarded in such a suit or proceeding against the indemnified party. The indemnified party may be represented by and actively participate through its own counsel in any such action or proceeding if it so desires, and the costs of such representation will be paid by the indemnified party.
8.2 Data Security. UBIX will keep data that it collects on Client’s behalf secure by maintaining an information security program with commercially reasonable safeguards. Its program will include commercially reasonable authentication procedures and access control mechanisms. This Section 8.2 does not apply does not apply to Derived Data.
- INSURANCE. UBIX, at its sole cost and expense, will maintain appropriate insurance with Commercial General Liability of at least $2,000,000 coverage and Professional Errors and Omissions of at least $1,000,000 coverage. A Certificate of Insurance indicating such coverage will be delivered to Client upon request.
10.NONSOLICITATION. During the term of this Agreement and for twelve (12) months thereafter, neither Party will not directly or indirectly solicit, induce, or attempt to induce any employee or independent contractor to terminate or breach any employment, contractual, or other relationship with the other Party or their associated entities.
- LIMITATION OF LIABILITY. NEITHER PARTY'S LIABILITY TO THE OTHER, BASED UPON BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, WILL (I) EXCEED THE AMOUNT OF PROFESSIONAL FEES PAID BY CLIENT TO UBIX PURSUANT TO THIS AGREEMENT IN ANY CONSECUTIVE TWELVE MONTH PERIOD, EXCEPT THAT UBIX SHALL BE ABLE TO CLAIM THE AMOUNT OF UNPAID FEES IN THE EVENT OF BREACH BY CLIENT AS A RESULT OF NON-PAYMENT, OR (II) INCLUDE ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY WAS ADVISED IN ADVANCE OF SUCH POTENTIAL DAMAGES. SUCH EXCLUDED DAMAGES INCLUDE, WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS AND LOSS OF SAVINGS OR REVENUE. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS SHALL NOT APPLY TO A BREACH OF THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS, BREACH OF THE PARTIES' RESPECTIVE CONFIDENTIALITY OBLIGATIONS OR VIOLATION OF THE PARTIES' RESPECTIVE INTELLECTUAL PROPERTY RIGHTS.
- TERM AND TERMINATION
12.1 Term. The term of the agreement continues until the expiration of all the service terms of any Sales Order unless earlier terminated in accordance with the agreement.
12.2 Service Terms. Each SALES ORDER will provide for a service term. At the end of the service term of any SALES ORDER, unless either party gives written notice to the other party of its intention not to renew at least 30 days before the end of a service term: (a) the term will automatically renew for successive one-year periods; (b) during each renewal term, UBIX will continue to provide the Service with the same volume limitations, if any; and (c) Client will pay the same fees as provided for in the relevant SALES ORDER. The termination or expiration of one SALES ORDER will not affect the term of any other SALES ORDER.
12.3 Termination for Breach. Either party may terminate the agreement immediately if the other party breaches the confidentiality or privacy obligations of Section 5. Either party may also terminate the agreement on 30 days prior notice for any material breach by the other party of the agreement, if the material breach is not cured within the 30- day notice period. If Client is late in paying fees that are due, UBIX may, without terminating the agreement, deny access to the UBIX services until Client makes the overdue payments.
12.4 No Right of Termination for Convenience. Neither party shall have the right to terminate the agreement or any SALES ORDER for convenience.
12.5 Effect of Termination. Upon termination or expiration of the agreement, UBIX will stop providing Services. Upon termination by Client for UBIX’s breach, UBIX will refund any unearned portion of prepaid usage fees. If UBIX terminates the agreement for Client’s breach, Client will pay any (a) outstanding balance for Services rendered through the date of termination and (b) other unpaid payment obligations during the remainder of the original stated term (or any renewal term) in the SALES ORDER, which will be immediately due and payable in full.
- GENERAL PROVISIONS
13.1 Governing Law; Venue. This Agreement is governed by the laws of the State ofCalifornia.
13.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.3 No Assignment. This Agreement and each Party’s rights and obligations under this Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, without both Parties express prior written consent. Notwithstanding the foregoing UBIX may assign this agreement, in whole or in part, by operation of law or otherwise, in connection with a merger, sale of substantially all of its assets or a change in control.
13.4 Notices. Each Party must deliver all notices, consents, and approvals required or permitted under this Agreement in writing to the other Party at the address listed on the signature page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized overnight carrier. Notice will be effective upon receipt or refusal of delivery. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
13.5 Legal Fees.The prevailing Party in any litigation between the Parties relating to this Agreement will be entitled to recover its reasonable attorneys’ fees and court costs, in addition to any other relief that it may be awarded.
13.6 Construction. Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement. When used in this Agreement, “including” means “including without limitation.” Whenever Client’s consent or approval is required under this Agreement, Client may grant or deny its consent or approval in its sole and absolute discretion. No rule of strict construction will be applied in the interpretation or construction of this Agreement. In the event of any conflict between this Agreement and a SALES ORDER, this Agreement will control unless the SALES ORDER expressly refers to the Parties’ intent to alter the terms of this Agreement with respect to that SALES ORDER.
13.7 Waiver. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.8 Entire Agreement; Amendments. This Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties. No modification of or amendment to this Agreement will be effective unless in writing and signed by the Party to be charged.
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