Master Services Agreement
for Professional Services
Updated November 1, 2021
The terms and conditions of this Master Services Agreement (“MSA”) set forth the basis upon which Data Prep U LLC (“DPU”) will provide professional services (“Services”) to the Customer as further described in an executed Statement of Work (“SOW”) or multiple SOWs approved by DPU and Customer (“Parties”). Any such executed SOW shall be incorporated herein by reference (collectively, the “Agreement”). DPU shall not be obligated to provide the Services until an approved SOW is executed by both Parties in accordance with this MSA.
In the event of a conflict between a provision of this MSA and an SOW, the provision of the MSA shall take precedence unless the SOW clearly intends to override the related provision in this MSA, in which case such provision in the SOW shall apply but only with respect to that SOW. Terms in a Party’s purchase order or similar document shall not apply to this MSA or any SOW.
3. Services and Deliverables
All Services and Deliverables provided by DPU under this MSA shall be described in an SOW or multiple SOWs that incorporate the terms of this MSA. The “Services” means all services, labor, materials, equipment, and supplies provided by DPU under an SOW. The “Deliverables” means those work products, reports, documentation, and other materials to be developed and provided by DPU to Customer in performance of the Services as described in an SOW. DPU may provide the Services and Deliverables using subcontractors. DPU shall be fully responsible for the Services and Deliverables under the Agreement.
4. Change Orders
If the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, the Parties shall prepare and sign a Change Order or new SOW, which likewise shall be attached hereto and incorporated herein by reference.
5. Acts and Omissions
If DPU’s performance of its obligations under this MSA is prevented or delayed by any act or omission of Customer, and DPU has informed Customer that such delay shall adversely impact the Services then, DPU shall not be deemed in breach of its obligations under this MSA or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Fees and Taxes
- 6.1. Customer agrees to pay DPU for Services provided by an SOW. Any estimate DPU may give Customer is not binding.
- 6.2. Our fees may reflect not only time spent, but also such factors as complexity, urgency, inherent risks, use of techniques, know-how, and research together with the level of skills and expertise required of the personnel needed to perform and review the Services. Our fees may include any time spent travelling for the purpose of the Services that cannot be used productively for other purposes. In consideration of the provision of the Services by DPU and the rights granted to Customer under the Agreement, Customer shall pay the fees set forth in the SOW.
- 6.3. Customer agrees to reimburse DPU for all preapproved reasonable expenses, such as travel and materials expense, incurred by DPU in connection with the performance of the Services. DPU shall not charge any expenses in connection with the performance of the Services without the express written consent of Customer.
- 6.4. Customer agrees to pay any taxes, including VAT, that are due in relation to DPU’s Services and Deliverables. Customer will pay DPU the full amount of any invoice, regardless of any deduction that Customer is required by law to make.
7. Invoice Payment
Unless otherwise provided in an SOW, DPU may invoice Customer monthly and all invoices are payable within thirty (30) days of the date of the invoice. If Customer does not pay an invoice on time, DPU may: (A) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the invoice date until the date paid; and (B) suspend performance for related Services until payment has been made in full.
- 8.1. Upon completion of a phase of Services or receipt of Deliverables, Customer shall have fourteen (14) days in which to accept or reject such Services or Deliverables unless the SOW provides a different acceptance period (in each case, the “Acceptance Period”). If prior to expiration of the Acceptance Period, Customer provides DPU written notice specifying the way the Services or Deliverables do not materially conform to the specifications of the applicable SOW, DPU shall re-perform in accordance with Section 8.2.
- 8.2. DPU shall have a period as otherwise agreed to or set forth in the applicable SOW to re-perform the Services or Deliverables as shall be reasonably required to materially conform with the specifications of the applicable SOW pursuant to Section 8.1 or to cure a breach of warranty pursuant to Sections 9.1. The re-performance shall be at Customer expense in accordance with the fees and rates of the applicable SOW unless the Parties determine the Services or Deliverables were not performed in accordance with good commercial practices. DPU shall notify Customer of changes made and submit the revised Services and Deliverables to Customer for acceptance in accordance with Section 8.1.
- 9.1. DPU warrants that it will perform the Services in a good and workmanlike manner, in accordance with the Agreement, and that Deliverables will materially comply with their applicable specifications. As the remedy for breach of the foregoing warranty, provided Customer notifies DPU of such breach prior to acceptance of such Services or Deliverables, DPU shall re-perform the Services or Deliverables in accordance with Section 8.2.
- 9.2. Each Party warrants that upon its execution, this MSA or any SOW will not materially violate any term or condition of any agreement that such Party has with any third-party and that the officers, executing this MSA or any SOW, are authorized to bind such Party to the terms and conditions thereof.
- 9.3. The preceding are the only warranties and override all other warranties, conditions, and representations, whether expressed or implied, including fitness for purpose, merchantability, or non-infringement.
10. Intellectual Property
- 10.1. Each Party (or its licensors as applicable) shall retain ownership of its intellectual property rights, including without limitation patents, copyright, know-how, trade secrets and other proprietary rights ("IP") which were existing prior to each respective SOW, or IP developed, licensed or acquired by or on behalf of a Party or its licensors independently from the Services or the Deliverables, in each case including any modifications or derivatives which may be created as part of the Services (collectively "Preexisting IP"). Customer grants to DPU (and its subcontractors), during the term of each SOW, a non-exclusive, fully paid, worldwide, non-transferable, limited license to use Customer’s Preexisting IP (and shall obtain the same license or consent as required from any third-party), solely for the purpose of providing the Services and Deliverables.
- 10.2. Effective upon final payment (including any license fee specified in the SOW), DPU grants to Customer, subject to any restrictions applicable to any third-party materials embodied in the Deliverables, a perpetual, worldwide, nontransferable, non-exclusive, irrevocable right and license to use, copy, modify and prepare derivative works of the Deliverables for purposes of Customer’s and its affiliated companies' internal business only. DPU’s Preexisting IP embedded in Deliverables may not be used separately.
- 10.3. Each Party is free to use concepts, techniques and know-how retained in the unaided memories of those involved in the performance or receipt of the Services. DPU is not precluded from independently developing for itself, or for others, anything, whether in tangible or non-tangible form, which is competitive with, or like the Deliverables provided and to the extent that they do not contain Customer Confidential Information. Certain DPU assets (e.g., platforms, systems, services, etc.) and third-party assets, may require additional terms of usage, which will be addressed in the SOW or directly within the asset where applicable. Customer agrees, notwithstanding any provision to the contrary, that DPU has the right to anonymize/de-identify and aggregate Customer data with other data and leverage anonymous learnings and insights regarding use of DPU products and services (the anonymized data, "DPU Insights"), and that DPU owns DPU Insights and may use DPU Insights for any business purpose during and after the term of the Agreement (e.g., to develop, provide, and improve DPU products and services). For the avoidance of doubt, as an agreed security measure, Customer hereby directs DPU to anonymize/de-identify any Customer data prior to such data becoming DPU Insights.
- 11.1. Each Party will defend and indemnify the other Party, including its parents, subsidiaries, affiliates, successors, and their directors, officers, employees, agents and representatives, against any third-party claims, including fines and penalties (and including interest and court costs), that a Party's IP or Deliverable provided pursuant to the Agreement, (A) infringes a third-party's copyright, trademark existing, or patent granted as of the date of delivery in any country in which the Services are delivered, or (B) misappropriates a third-party's trade secrets.
- 11.2. If any DPU IP used in the Services or embedded in the Deliverable is, or is likely to be held to be, infringing, DPU will at its expense and option either: (A) procure the right for Customer to continue using it, (B) replace it with a non-infringing equivalent, (C) modify it to make it non-infringing, or (D) direct the return of the infringing IP or Deliverable and refund to Customer the fees paid for it.
- 11.3. The indemnifying Party will have no liability to the extent the alleged infringement or misappropriation was caused by: (A) modifications to any IP or Deliverable made by or on behalf of the receiving Party; (B) use of the IP or Deliverable other than as permitted under the Agreement or in combination with any products or services where such combination was not within the reasonable contemplation of the Parties; (C) the failure to use corrections or enhancements to the IP or Deliverable provided by the indemnifying Party; or (D) specifications or direction provided by the indemnified Party. To receive the benefits of this provision, the indemnified Party must promptly, and in any event within fourteen (14) days, notify the indemnifying Party in writing of the third-party claim and provide reasonable cooperation and full authority to the indemnifying Party to defend or settle the claim, provided that such settlement does not impose any obligation, monetary or otherwise, on the indemnified Party, other than to cease using the infringing IP or Deliverable, without its consent. This section sets out the sole and exclusive remedies for indemnified claims.
- 12.1. Except for each Party’s obligation of IP indemnification and confidentiality obligation, neither Party shall be liable for any incidental, indirect, punitive, special, or consequential damages arising out of or in connection with the Agreement.
- 12.2. Neither party shall have liability for (A) loss of revenue, income, profit, or savings whether direct or indirect, (B) lost or corrupted data or software, loss of use of systems or the recovery of such, (C) loss of business opportunity, (D) business interruption or downtime, or (E) services or third-party products not being available for use by Customer.
- 12.3. Except for claims that the Services, excluding third-party services, caused bodily caused bodily injury (including death) due to due to either party’s negligence or willful misconduct, each party’s total liability, whether the claim for such damages is based in contract, warranty, strict liability, negligence, or tort, arising out of, or in connection with the Services or the Agreement, shall be for direct damages and not to exceed the aggregate of amounts paid or payable by Customer under the applicable transaction document for the specific Services giving rise to such claim during the prior twelve (12) month period.
- 13.1. DPU shall maintain commercial general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate. DPU may satisfy the foregoing minimum limits by any combination of primary liability and umbrella excess liability coverage that result in the same protection to DPU and Customer.
- 13.2. Upon request, Customer shall be named as an additional insured under the commercial general liability policy and shall be provided with a certificate of insurance evidencing the required insurance. DPU shall notify Customer, no less than thirty (30) days in advance, of any cancellation or non-renewal of the above insurance.
14. Term and Termination
- 14.1. This MSA shall commence on the earlier of the date of the Effective Date of this MSA, effective date of an SOW, or the date on which delivery of the Services begins and shall terminate in accordance with the terms hereunder.
- 14.2. Either Party may terminate this MSA or an SOW for convenience by providing at least thirty (30) days prior written notice to the other Party. Termination of this MSA for convenience will not terminate any outstanding SOWs that provide for a specific term over which the Services are to be provided. In such case, this MSA, as incorporated into the SOW, and the SOW that provides for a specific term shall remain in effect for the remainder of such term.
- 14.3. Upon termination of this MSA, all rights and obligations of the Parties under this MSA will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination. Either Party may terminate an individual SOW if the other Party commits a material breach of such agreement, and the breach is not cured within thirty (30) days of receipt of written notice from the Party seeking to terminate such SOW. Termination of one or more SOWs shall not terminate this MSA.
- 14.4. Upon termination date of an SOW, DPU shall cease performing all related Services and shall promptly invoice Customer. Customer shall promptly pay DPU in accordance with the Agreement for all Services rendered and expenses incurred prior to the effective date of the SOW termination. DPU shall promptly refund to Customer the related unused portion of any prepaid amount. DPU shall promptly delivery to Customer any related Deliverables regardless of the stage of completion and other property related to the Services which are in DPU’s possession and in which Customer has or may acquire an interest. Customer shall promptly delivery to DPU any of DPU’s property which Customer came into possession of during the performance of the terminated SOW and in which Customer has no interest, license to use, or rights of ownership.
- 15.1. If the parties have entered into a separate mutual non-disclosure agreement (“NDA”), then as between the NDA and this MSA, the provisions that afford the disclosing part the greatest protection shall apply.
- 15.2. From time to time during the Term of the Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party, including but not limited to Intellectual Property, that is clearly identified as confidential at the time of disclosure or is received under circumstances that a person exercising reasonable business judgment would understand as imposing an obligation of confidentiality (“Confidential Information”). Confidential Information does not include any information that: (A) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (B) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (C) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (D) was or is independently developed by Receiving Party without using any Confidential Information.
- 15.3. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s employees, officers, directors, shareholders, partners, members, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and advisors (collectively, “Representatives”) who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
- 15.4. At the written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy the Disclosing Party’s Confidential Information in its possession or under its control provided, that the Receiving Party may retain a back-up copy of the Disclosing Party’s Confidential Information as reasonably necessary to exercise the Receiving Party’s rights and undertake its obligations that survive termination of the Agreement and as otherwise required by law, regulation, or internal compliance policies, which retained Confidential Information shall continue to be subject to the provisions of the Agreement.
Neither Party will use the other Party's name outside its company without prior written consent of the other Party. Notwithstanding the foregoing, DPU may request, and Customer will, at their discretion, provide reasonable written or verbal verification of DPU’s work and general nature of the services to DPU existing and prospective customers. DPU shall be permitted to reference Customer and the general area of work under the Agreement for marketing to existing and prospective DPU customers. Customer agrees that DPU may do so provided that DPU does not disclose any Customer Confidential Information.
The Parties are independent contractors. Neither Party shall have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another Party except as specified in the Agreement. Nothing in the Agreement will be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purpose.
18. Force Majeure
Neither Party shall be liable to the other Party for any failure to perform any of its obligations (except payment obligations) under the Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, epidemic, pandemic, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. The delayed Party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other Party may immediately terminate the applicable SOW by giving written notice to the delayed Party.
Neither Party may assign the Agreement (other than, upon written notice, to a Party's subsidiary or affiliate under common control) without the prior written consent of the other, which consent will not be unreasonably withheld or delayed. The Agreement shall be binding on each Party's permitted assignees.
20. Entire Agreement
The Agreement, including all SOWs, shall constitute the entire agreement between DPU and Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements. No amendment to or modification of the Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both Parties. This MSA and each SOW shall be interpreted as a single Agreement, independent of each other SOW, so that all provisions are given as full effect as possible. If any provision of the Agreement is void or unenforceable, the remainder of the Agreement shall remain in full force and not be terminated.
21. Other Agreements
Customer acknowledges and agrees that the terms and conditions of any sales, service or other agreement Customer may have with DPU are separate and apart from the terms and conditions of this Agreement. The terms and conditions of this Agreement govern the use of the Services and such terms are not diminished or otherwise affected by any other agreement Customer may have with DPU.
22. Educational Services
Any educational services relevant to the Services, such as training or coaching that require access to DPU’s education website, are subject to a separate agreement between DPU and Customer.
Notice to the other Party under the Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address listed above on the signature page “Address for Notifications” or to such other address (including electronic) as specified in writing and will be effective upon receipt.
24. Governing Law, Venue, and Language
The construction and performance of the Agreement shall be governed by this section. Section headings in all documents forming the Agreement are for reference only and shall not affect the meaning or interpretation of the Agreement. The Agreement shall be interpreted and construed in accordance with the English language. The Agreement shall be governed by and construed in accordance with the laws of the State of Colorado as if performed wholly within the state of Colorado and without giving effect to the principles of conflict of law.
25. Dispute Resolution
Customer and the DPU Parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to the Agreement (a “Dispute”) through face-to-face (in person or by virtual meeting) negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation shall be treated as confidential. Notwithstanding the foregoing, either Party shall have the right to seek to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the Parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other Party, the Parties agree that the Dispute shall be settled by binding arbitration in Denver, Colorado by an arbiter mutually agreed upon by both Parties, or selected by the Judicial Arbiter Group located in Denver, Colorado if a mutually agreed arbiter cannot be decided upon within fourteen (14) days.
26. Limitation Period
Neither Party may institute any action in any form arising out of the Agreement more than one (1) year after the delivery of the service that would be the subject matter of such action.