Professional Services Master Agreement
Exhibit 10.15.4
This Services Agreement (“Agreement”) is entered into by and between the following Parties:
Digital Matrix Systems, Inc. (“DMS”)
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Intersections (“Client”) | |
(a Texas corporation),
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(a Delaware), | |
having a place of business at:
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having a place of business at: | |
15301 Spectrum Drive
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00000 Xxxxx Xxxxx | |
0xx Xxxxx
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Xxxxx 000 | |
Xxxxxxx, Xxxxx 00000
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Xxxxxxxxx, XX 00000 | |
Attention:
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Attention: Xxx Xxxxxxx | |
cc:
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cc: Xxxx Xxxxxxxxxxx | |
Telephone:
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Telephone: 000-000-0000 | |
Facsimile:
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Facsimile: 000-000-0000 | |
E-mail:
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E-mail: xxxxxxxx@xxxxxxxxxxxxx.xxx | |
| xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx |
For purposes of this Agreement, DMS and Client each will be referred to individually as a “Party”
and together as the “Parties.” Unless otherwise specified herein, “DMS” will include DMS and any
present or future entity that, directly or indirectly through one or more intermediaries, controls
or is controlled by Digital Matrix Systems, Inc. or is under common control with Digital Matrix
Systems, Inc. For the purposes of this definition, “control” means the power to direct or cause
the direction of the management, policies or affairs of the controlled entity, whether through
ownership of securities or partnership or other ownership interests, by contract or otherwise.
The
effective date of this Agreement is the
11th day
of November, 2005 (“Effective Date”).
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Services and Fees.
1.1. DMS will provide the services described in the Statements of Work and Fees
(“SOW”) as set forth in Exhibit A attached hereto and incorporated herein (“Services”), for
Client for the fees specified therein and pursuant to the schedule set forth therein, provided that
a completed SOW will be binding upon the Parties only when it is executed by the Parties. Each SOW
entered into under this Agreement will be construed to incorporate the provisions of, and to be
governed by, this Agreement, and will be considered part of this Agreement.
1.2. DMS agrees to furnish the materials set forth in the SOW(s).
2. Payment Terms
2.1. DMS will submit original invoices to Client on a monthly basis or as otherwise
specified in the applicable SOW. Such invoices will state the amounts due for the applicable
period, as set forth in the applicable SOW, along with an explanation of all work performed for
such fees. Unless otherwise stated in the applicable SOW, Client will pay all invoices in U.S.
dollars within thirty (30) days of receipt of the invoice.
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2.2. In addition to all amounts payable by Client under any SOW, Client will pay
amounts equal to all sales, use, personal property or other taxes resulting from performance under
this Agreement or any SOW unless Client furnishes proof of exemption from payment of such taxes in
a form reasonably acceptable to DMS. Client shall not be responsible for nor required to pay taxes
based on DMS’ net income.
2.3. To the extent that the terms and conditions of this Agreement and the terms and
conditions of any SOW conflict, the terms and conditions of this Agreement will control unless the
SOW specifically states that its term is meant to amend a term of this Agreement.
3. Term and Termination.
3.1. Term. This Agreement will commence as of the Effective Date and continue for
two years. This Agreement will automatically renew upon each anniversary of the effective date for
an additional two years unless earlier terminated in accordance with the provisions of this
Agreement.
3.2. Termination for Cause.
(a) Client may immediately terminate one or more SOWs, or this Agreement as a whole, in the
event that DMS breaches any material obligation under this Agreement and such breach remains
uncured for thirty (30) business days after written notice of such breach is delivered to DMS. If
Client so terminates, Client agrees to pay DMS all fees incurred prior to the date of such
termination.
(b) DMS may immediately terminate one or more SOWs, or this Agreement as a whole, in the event
that Client breaches any material obligation under this Agreement including non-payment of any fees
due and such breach remains uncured for thirty (30) business days after written notice of such
breach is delivered to Client. If DMS so terminates, Client agrees to pay to DMS all fees incurred
prior to the date of such termination.
3.3. Termination Without Cause. Either party may terminate one or more
SOWs, or this Agreement as a whole, without material cause upon ninety (90) days prior written
notice to the other party. Client agrees to pay to DMS all fees incurred prior to the date of such
termination.
4. Confidentiality of Proprietary Information.
In the performance of this Agreement, each Party may disclose to the other Party certain
Confidential Information. For the purposes of this Agreement, the following terms will
have the definitions set forth herein.
4.1. Confidential Information means any information, data, computer software,
invention, design, idea, concept, specification, formula, device, equipment, plan, process,
document or material, whether tangible or intangible in any form or format (including, without
limiting the generality of the foregoing, information relating to strategic information, marketing
strategies or plans, information relating to current and potential customers and/or clients, and
pricing policies or plans) including without limitation all complete and partial originals,
reproductions, copies (handwritten or otherwise), notes and other items (including photographs),
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which are trade secrets or confidential or proprietary in nature provided, however, that
Confidential Information does not include information which:
(a) is or becomes available to the public through no breach of this Agreement;
(b) was previously known by the recipient without any obligation to hold it in confidence;
(c) is received from a third party free to disclose such information without restriction;
(d) is independently developed by the recipient without the use of Confidential Information of
the Disclosing Party;
(e) is approved for release by written authorization of the Disclosing Party, but only to the
extent of and subject to such conditions as may be imposed in such written authorization; or
(f) is required by law or regulation to be disclosed, but only to the extent and for the
purposes of such required disclosure; or is disclosed in response to a valid order of a court or
other governmental body of the United States or any political subdivisions thereof, but only to the
extent of and for the purposes of such order; provided, however, that the Receiving Party shall
first notify the Disclosing Party of the order and permit the Disclosing Party to seek an
appropriate protective order.
4.2. (b) “Disclosing Party” means the Party disclosing any Confidential Information
hereunder, whether such Party is DMS or Client and whether such disclosure is directly from the
Disclosing Party or through the Disclosing Party’s employees or agents.
4.3. (c) “Receiving Party” means the Party receiving any Confidential Information
hereunder, whether such Party is DMS or Client and whether such disclosure is received directly or
through the Receiving Party’s employees or agents.
4.4. The Receiving Party acknowledges and agrees that the Confidential Information
of the Disclosing Party will remain the sole and exclusive property of the Disclosing Party or a
third party providing such information to the Disclosing Party. The disclosure of the Confidential
Information to the Receiving Party does not confer upon the Receiving Party any license, interest,
or right of any kind in or to the Confidential Information, except as provided under this
Agreement. At all times and notwithstanding any termination or expiration of this Agreement, the
Receiving Party agrees that it will hold in strict confidence and not disclose to any third party
the Confidential Information of the Disclosing Party, except as approved in writing by the
Disclosing Party. The Receiving Party will only permit access to the Confidential Information of
the Disclosing Party to those of its employees or authorized representatives having a need to know
and who have signed confidentiality agreements or are otherwise bound by confidentiality
obligations at least as restrictive as those contained in this Agreement. The Receiving Party will
be responsible to the Disclosing Party for any third party’s use and disclosure of the Confidential
Information that the Receiving Party provides to such third party in accordance with this
Agreement. The Receiving Party will use at least the same degree of care it would use to protect
its own Confidential Information of like importance, but in any case with no less than a reasonable
degree of care.
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4.5. If the Receiving Party is required by a governmental agency or law to disclose
any of the Confidential Information of the Disclosing Party, the Receiving Party must first give
written notice of such required disclosure to the Disclosing Party, take reasonable steps to allow
the Disclosing Party to seek to protect the confidentiality of the Confidential Information
required to be disclosed, and will disclose only that part of the Confidential Information which,
in the written opinion of its legal counsel, it is required to disclose.
4.6. Each Party to this Agreement will immediately notify the other Party in writing
upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other
Party.
4.7. The Receiving Party will not reproduce the Disclosing Party’s Confidential
Information in any form except as required to accomplish the intent of this Agreement. Any
reproduction of any Confidential Information by the Receiving Party will remain the property of the
Disclosing Party and will contain any and all confidential or proprietary notices or legends that
appear on the original, unless otherwise authorized in writing by the Disclosing Party.
4.8. Upon either termination or expiration of this Agreement, or upon written
request of the other Party, each Party will either: (a) promptly return to the other Party all
documents and other tangible materials representing the other Party’s Confidential Information, and
all copies thereof in its possession or control; or (b) destroy all tangible copies of the other
Party’s Confidential Information in its possession or control.
4.9. Neither Party will communicate any information to the other Party in violation
of the proprietary rights of any third party.
4.10. If either Party should breach or threaten to breach any provision of this
Section 4 of the Agreement, the non-breaching Party, in addition to any other remedy it may have at
law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy
in order to specifically enforce the provisions of this section of the Agreement. Each Party
specifically acknowledges that money damages alone would be an inadequate remedy for the injuries
and damages that would be suffered and incurred by the non-breaching Party as a result of a breach
of this section of the Agreement. In the event that either Party should seek an injunction
hereunder, the other Party hereby waives any requirement for the submission of proof of the
economic value of any Confidential Information or the posting of a bond or any other security.
4.11. Notwithstanding any expiration or termination of this Agreement, all of the
Receiving Party’s nondisclosure and use obligations pursuant to this Agreement will survive for two
(2) years after expiration or termination with respect to any Confidential Business Information
received prior to such expiration or termination and with respect to Trade Secrets will continue
for so long as such information continues to constitute a trade secret under applicable law.
4.12. The provisions set forth in this Section 4 of the Agreement supersede any
previous agreement between the Parties relating to the protection of any Confidential Information
as set forth herein.
4.13. Each Party agrees to hold all non-public information of consumers, as defined
in the Xxxxx-Xxxxx-Xxxxxx Act, received from the other party as confidential and will not disclose
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or use such information other than to perform its obligations as set forth in this Agreement
or as otherwise authorized by law.
5. Ownership.
5.1. For purposes of this Agreement, “Work Product” means all original works of
authorship created in whole or in part by, and all inventions discovered in whole or in part by DMS
pursuant to this Agreement, including but not limited to software, data, reports, statistical
analyses, models, materials, documentation, computer programs, inventions (whether or not
patentable), pictures, audio, video, artistic works, including all worldwide rights therein under
patent, copyright, trade secret, confidential or proprietary information, or other property right,
whether prior to the date of this Agreement or in the future, and that either: (a) are created
within the scope of the performance of the Services; or (b) have been or will be paid for by
Client.
5.2. DMS has pre-existing intellectual property interests in various proprietary
analyses, evaluations, reports, models, plans, computer software, systems, materials, documentation
and inventions (“Existing Material”) that may be utilized to provide Services to Client.
5.3. All Work Product will be jointly owned by DMS and client unless otherwise noted
on the applicable SOW. In no event will ownership of Existing Material be transferred to Client.
5.4. DMS hereby grants to Client a perpetual, worldwide, non-exclusive, paid-up,
limited license to use and copy (but not modify without the express written consent of DMS) for
Client’s internal purposes only, unless otherwise provided in the applicable SOW.
6. Warranties, Indemnities and Liabilities.
6.1. DMS warrants that it will use commercially reasonable efforts, skill,
knowledge, and sound professional principles and practices in accordance with normally accepted
industry standards in the performance of the Services.
6.2. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.3. OTHER THAN DAMAGES RESULTING FROM A PARTY’S VIOLATION OF ITS OBLIGATIONS OF
CONFIDENTIALITY OR THE INFRINGEMENT OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS,
IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ITS OBLIGATIONS UNDER OR ARISING OUT OF
THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF DATA/PROGRAMS OR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE,
COMPUTER FAILURE, LOSS OF WORK PRODUCT OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES WHETHER
DIRECTLY OR INDIRECTLY CAUSED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO ANY
PRODUCT OR
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SERVICES IN EXCESS OF THE AMOUNTS PAID BY CLIENT TO DMS FOR SERVICES UNDER THE SOW TO WHICH
SUCH DAMAGES RELATE. THESE LIMITATIONS WILL APPLY NOT-WITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
7. Miscellaneous.
7.1. Entire Agreement. This Agreement and any executed SOWs constitute the
entire agreement between the Parties concerning the Services to be provided hereunder and supersede
all written or oral prior agreements or understandings with respect to such Services. No course of
dealing or usage of trade will be used to modify the terms hereof. This Agreement does not
supersede any other written agreements entered into between the parties with respect to matters
other than the Services.
7.2. No Oral Modification. No modification, extension or waiver of or under
this Agreement or any SOW will be valid unless made in writing and signed by authorized
representatives of both Parties. No written waiver will constitute, or be construed as, a waiver
of any other obligation or condition of this Agreement or any SOW.
7.3. Unenforceability. If any provision of this Agreement is found by a
proper authority to be unenforceable or invalid, such unenforceability or invalidity will not
render this Agreement unenforceable or invalid as a whole; rather, this Agreement will be construed
as if not containing the particular invalid or unenforceable provision or portion thereof, and the
rights and obligations of the Parties hereto will be construed and enforced accordingly. In such
event, the Parties will negotiate in good faith a replacement provision that would best accomplish
the objectives of such unenforceable or invalid provision within the limits of applicable law or
applicable court decisions.
7.4. Assignment. Neither Party may assign or transfer any right or
obligation under this Agreement without the prior written consent of the other Party except in the
event of a sale of stock or substantially all of the assets of a Party, in which case written
notice, but no consent shall be required. DMS may delegate or subcontract its performance
hereunder provided that DMS remains liable for the performance of this Agreement.
7.5. Legal Notices. Any notices to be given hereunder by either party to
the other party may be provided in writing and delivered by personal delivery or certified mail or
overnight carrier mail, return receipt requested. Such notices will be deemed given upon personal
delivery, five (5) business days after deposit in the mail, or upon the date of the certification
of written reply acknowledgment, whichever is applicable.
7.6. Notices will be sent to the addresses set forth on the first page of this
Agreement or to such other address as either Party may specify in writing.
7.7. Survival. Any and all provisions, promises and warranties contained
herein, which by their nature or effect are required or intended to be observed, kept or performed
after termination of this Agreement, will survive the termination of this Agreement and remain
binding upon and for the benefit of the Parties hereto.
7.8. Independent Contractor. DMS will perform this Agreement solely as an
independent contractor, and not as Client’s agent or employee. Neither Party has any authority to
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make any statement, representation or commitment of any kind or to take any action binding
upon the other Party, without the other Party’s prior written authorization.
7.9. Binding Arbitration. Any controversy or claim arising out of or
relating to this agreement, or the breach thereof, other than breaches of confidentiality as set
forth in Section 4 herein, shall be settled by binding arbitration administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules including the Optional
Rules for Emergency Measures of Protection (the “Rules”), and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Any arbitration will be held
before a single arbitrator if both parties can agree upon a designated Arbitrator. In the event
that the parties cannot agree on a single arbitrator, each party shall designate one arbitrator and
a third arbitrator shall then be selected by the two chosen arbitrators, thereby creating a
three-member arbitration panel. The arbitrators will be selected from a pool of arbitrators
experienced in Intellectual Property matters. The costs for the arbitration and fess of the
arbitrator(s) shall be shared equally by the Parties. The Parties agree that arbitration shall
take place in the District of Columbia. Notwithstanding the above, nothing in this Section 7.8
shall prohibit either party from seeking temporary or permanent injunctive relief in a court of
competent jurisdiction.
7.10. Governing Law and Jurisdiction. This Agreement will be governed by
and construed in accordance with the laws of the Commonwealth of Virginia, without reference to
conflict of laws principles.
7.11. Non-Solicitation. Each Party agrees that, during the term of this
Agreement and for twelve (12) months thereafter, it will not, directly or indirectly, solicit or
induce any employee of the other Party to consider or accept employment with the first Party.
Neither Party is prohibited from responding to or hiring employees of the other Party who inquire
about employment with the first Party on their own accord or in response to a public advertisement
or employment solicitation in general.
7.12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will for all purposes be deemed an original and all of which will
constitute the same instrument.
7.13. Headings. Headings of particular sections are inserted only for
convenience and are not to be considered a part of this Agreement or be used to define, limit or
construe the scope of any term or provision of this Agreement. Should any provision of this
Agreement require judicial interpretation, the Parties agree that the court interpreting or
construing the same will not apply a presumption that the terms of this Agreement will be more
strictly construed against one Party than against the other.
7.14. Conflicts. To the extent that the terms and conditions of this
Agreement and the terms and conditions of any SOW conflict, the terms and conditions of this
Agreement will control unless the SOW specifically states that its term is meant to amend a term of
this Agreement.
7.15. Force Majeure. Neither party will be held liable for failure to
fulfill its obligations hereunder (except for payment obligations) if such failure is due to a
Force Majeure Event. A “Force Majeure Event” means an act of war; domestic and/or international
terrorism; civil rights or rebellions; quarantines, embargoes and other similar unusual
governmental actions; or extraordinary elements of nature or acts of God; provided that such Force
Majeure Event is
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beyond the excused Party’s reasonable control, occurs without the excused Party’s fault or
negligence, is not caused directly or indirectly by the excused Party and could not have been
prevented by the excused Party’s reasonable diligence.
IN WITNESS WHEREOF, DMS and Client have caused this Agreement to be signed and delivered as of the
Effective Date first written above.
| DIGITAL MATRIX SYSTEMS, INC. | CLIENT | |||||||
Name:
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Name: | |||||||
Title:
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Title: | |||||||
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Exhibit A
Statement of Work and Fees
This Statement of Work and Fees (“SOW”) is an exhibit to and a part of that certain Services
Agreement (the “Agreement”) entered into by and between Digital Matrix Systems, Inc. (“DMS”) and
(“Client”), effective as of . This SOW will be effective only
when signed by DMS and Client and upon the later of the Effective Date as defined in the Agreement
or the last date indicated below. This SOW may be amended only as provided for in the Agreement.
1. Definitions: Unless otherwise defined herein, all capitalized terms will have the
meanings ascribed to them in the Agreement.
| 2. | Services: | |
| 3. | Schedule: | |
| 4. | Fees: |
5. Costs/Expenses: Client agrees to reimburse DMS for all expenses related to work done for
Client including costs for postage, packaging, courier or shipping charges, long distance telephone
and fax charges, copying charges, and traveling expenses.
| 6. | Materials: |
Agreed upon and effective only when signed by duly authorized representatives.
Dated: |
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DMS
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CLIENT | |||||||
Name:
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Name: | |||||||
Title:
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Title: | |||||||
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