STANDARD TERMS AND CONDITIONS
Rev: 1/25
1. DEFINITIONS.
1.1 "Confidential Information" means all information furnished by either party in oral, written or machine-readable form that is either marked as confidential or which should reasonably be known to be confidential based on the nature of the information or the circumstances of its disclosure. Confidential Information does not include any information that (i) is already publicly available at the time of disclosure; (ii) in the receiving party’s possession prior to the disclosure; (iii) was previously disclosed to the receiving party by a third party who is under no obligation to the disclosing party to hold that information in confidence; or (iv) was independently developed by the receiving party.
1.2 "Services" means the services set forth on the SOW(s) (defined below).
1.3 "Deliverables" means the deliverables set forth on the SOW(s) (defined below) including without limitation any data, reports or other materials.
2. CONSULTANT SERVICES.
2.1 Statements of Work. MSL will provide to Client the Services and Deliverables (collectively, the “Consultant Services”) expressly set forth in separately executed statement(s) of work (each, a “SOW”).
2.2 Information. Client will provide complete and accurate information regarding its business and needs to MSL as necessary for MSL to fully provide the Consultant Services. Any error in the Consultant Services resulting from incomplete and/or inaccurate information provided by Client shall be Client’s responsibility.
2.3 Change Orders. The parties may mutually agree to change the terms of any particular SOW by executing a written change order.
3. FEES
3.1 Fees. Client will pay MSL the fees as set forth in the relevant SOW (the “Fees”).
3.2 Charges. Client will also pay all actual out-of-pocket expenses incurred in connection with the provision of the Consultant Services, if any, including without limitation travel expenses, provided Client has approved such expenses in advance (the “Expenses”).
3.3 Payment Terms. MSL will issue invoices for the Fees and Expenses in accordance with the relevant SOW. Payment of each invoice is due within thirty (30) days following Client’s receipt of such invoice. Client will make all payments without right of set-off or chargeback. MSL may charge interest of one and one-half percent (1.5%) per month, or any lower maximum rate allowable by law, on any amounts that remain unpaid after they are due.
3.4 Taxes. Fees and Expenses do not include any applicable present or future sales, use, value added, excise, or similar taxes. Client shall be responsible for payment of any such taxes that are applicable.
4. PROPRIETARY RIGHTS.
4.1 Work Product. Unless otherwise stated in a relevant SOW, MSL agrees that the Deliverables delivered by MSL to Client in connection with the performance of the Consulting Services are work product. Portions of such Deliverables shall be the property of Client; provided, however, that no ownership interest shall vest in Client as to preexisting materials belonging to MSL or the ideas, concepts, techniques and know-how discovered, created or developed by MSL during the performance of Consultant Services that are of general application and do not incorporate any of Client’s Confidential Information (collectively the “Pre-Existing Materials”; and the portions of the Deliverables that are not Pre-Existing Materials” are “Work Product”). All right, title and interest in and to the Work Product will vest in Client, and all Work Product will be deemed to be works made for hire for Client. To the extent that title to any such Work Product may not otherwise vest in Client, MSL agrees to assign and hereby assigns all right, title and interest therein to Client.
4.2 Pre-Existing Materials. MSL reserves all right, title and interest in and to the Pre-Existing Materials. To the extent the Pre-Existing Materials are necessary for the intended use and/or operation of, and are inextricably linked to, the Deliverables, MSL hereby grants to Client a perpetual, fully paid up, non-exclusive license to use such Pre-Existing Materials solely to the extent necessary to be able to fully use and/or operate the Deliverables. Client shall not be permitted to extract the Pre-Existing Materials from the Deliverables or otherwise reverse-engineer the Pre-Existing Materials. Client agrees that the Pre-Existing Materials are the Confidential Information of MSL.
4.3 Improvements. Any feedback, improvements or other information Client provides to MSL with regard to the Consultant Services may be freely used by MSL without payment obligation to Client and shall be considered the property of MSL. MSL may also use any data, information, ideas, know-how and techniques that are learned or developed by MSL in the course of providing the Consultant Services, and such data, information, ideas, know-how and techniques shall be the sole property of MSL, except to the extent such data, information, ideas, know-how and techniques contain the Confidential Information of Client.
5. WARRANTIES
5.1 MSL Warranties. MSL warrants that it will perform the Consultant Services in a professional and workman-like manner, and in accordance with the generally accepted industry standards for such Consultant Services. If MSL breaches this warranty, Client's sole and exclusive remedy shall be for MSL to correct such breach by re-performing the non-conforming Consultant Services in a reasonable amount of time.
5.2 Client Warranty. Client warrants that it owns or otherwise has the right to provide to MSL any information, including any Confidential Information, disclosed by Client to MSL.
5.3 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 5.1, MSL EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, CONDITIONS, AND UNDERTAKINGS WITH RESPECT TO CONSULTANT SERVICES AND THEIR RESULTS AND PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. INDEMNITY
6.1 Each party shall indemnify, defend and hold harmless the other party, its affiliates and assigns, and their directors, officers, employees and agents from and against any and all claims, losses, demand, liabilities, expenses and costs (including reasonable attorneys’ fees) (collectively, “Claims”) arising out of any third party claim relating to the indemnifying party’s breach of any term of this Agreement or SOW. If either party becomes aware of a Claim which may require indemnification, the indemnified party will promptly notify the indemnifying party in writing of the Claim and will allow the indemnifying party to assume sole and full control of the defense and settlement of the Claim; provided, that the indemnifying party shall not confess any judgment or enter into any settlement without the prior written consent of the indemnified party, which shall not be unreasonably withheld. The indemnified party will provide the indemnifying party with reasonable assistance and information necessary to defend and/or settle the Claim. The indemnified party's counsel shall have the right to participate in the defense and settlement of the Claim, at such party's own expense.
7. LIMITATION OF LIABILITY
7.1 EXCEPT WITH REGARD TO CLAIMS ARISING OUT OF BREACHES OF CONFIDENTIALITY, (I) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABILITY TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) MSL’S TOTAL LIABILITY TO CLIENT HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT DURING THE TERM OF THE APPLICABLE SOW.
8. CONFIDENTIALITY
8.1 Ownership of Confidential Information. All Confidential Information disclosed by or on behalf of either party to the other party is and will remain the sole and exclusive property of the disclosing party or its licensors.
8.2 Restrictions on Disclosure. Each party agrees that, during the Term and for one (1) year thereafter, it will not disclose to any third party the Confidential Information of the disclosing party, except as necessary to employees, agents or independent contractors of the receiving party who are directly involved in the performance of this Agreement and/or any relevant SOW and have a need to know such Confidential Information. Furthermore, each party will maintain the confidentiality of all Confidential Information of the disclosing party, which obligation shall be satisfied by the receiving party treating such Confidential Information as it treats its own Confidential Information of a similar type. Notwithstanding theforegoing, each party may disclose the Confidential Information of the disclosing party to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided such party provides prompt notice to the disclosing party of such requirement so as to allow the disclosing party to seek protective treatment of such Confidential Information.
8.3 Return of Confidential Information. Upon expiration or termination of this Agreement, each party shall, in a commercially reasonable amount of time, return to the other party any and all tangible forms of Confidential Information of such party that it has in its possession.
8.4 Other Uses. Notwithstanding anything to the contrary, MSL may retain information and data collected in connection with the provision of services to Client (including under prior agreements) to (i) use such information and data to improve and enhance the Consultant Services, (ii) to develop benchmarks and other analytics for use in connection with the Consultant Services, and (iii) disclose such information and data solely in aggregate or de-identified form, each in compliance with applicable law and without disclosing any Confidential Information of Client except as provided in this Agreement.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement shall commence on the Effective Date, as set forth on the cover sheet to this Agreement, and shall continue, unless earlier terminated in accordance with this Agreement, until the later of (i) the Expiration Date set forth on the cover sheet to this Agreement, or (ii) the completion of the Consultant Services and payment of all Fees and Expenses described all SOWs under this Agreement (the “Term”).
9.2 Termination for Cause. Either party may terminate this Agreement and/or any SOW by giving written notice to the other party, if the other party fails to remedy any breach of this Agreement or SOW within thirty (30) days after its receipt of written notice of breach and intent to terminate.
9.3 Termination for Convenience. Either party may terminate this Agreement and/or any SOW at any time without cause upon thirty (30) days written notice to the other party, subject to Client's payment in full for any Consultant Services performed in full or in part by MSL prior to the date of receipt of the notice. Additionally, for any SOW under which MSL has made an investment in equipment or hired employees or subcontractors specifically to fulfill such SOW for Client, and/or permitted Client to defer payment for Consultant Services already rendered in full or in part by MSL (collectively, “Implementation Costs”), Client shall pay MSL in full for Implementation Costs, within thirty (30) days of receipt of a reasonably detailed invoice following termination.
9.4 Effects of Expiration or Termination. Upon expiration or termination of this Agreement, in whole or in part, the following shall occur:
(a) Client shall pay all amounts due and payable under this Agreement and/or any affected SOW;
(b) The following sections shall survive: 1, 4, 5, 6, 7, 8, 9, and 10.
(c) Neither party will be liable to the other for damages, losses, costs or expenses of any kind or character whatsoever on account of the termination of this Agreement pursuant to this Section 9 arising from or in connection with the loss of prospective sales, or expenses incurred or investments made in connection with the establishment, development or maintenance of either party's business.
10. GENERAL
10.1 Insurance. At all times during the Term, MSL shall maintain comprehensive general liability insurance covering itself and its employees providing Consultant Services pursuant to the Agreement on an occurrence basis in the minimum amounts of one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate of all claims. MSL shall maintain worker's compensation coverage for its employees performing services pursuant to this Agreement. Upon Client’s reasonable written request, MSL shall provide Client a certificate of insurance evidencing that such coverage is in effect during the Term.
10.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other; provided, however, that consent shall not be required in the event that (i) MSL assigns the benefits, but not the responsibilities, of this Agreement to any third party without the prior consent of Client, and/or (ii) Client assigns this Agreement to a subsidiary or to an affiliated entity under common control.
10.3 Force Majeure. If either party's performance of any part of this Agreement or any SOW hereunder, except for the payment of money owed when due, is prevented or delayed by a Force Majeure Event, that party will be excused from such performance to the extent it is necessarily prevented or delayed thereby. “Force Majeure Event” means an event beyond a party's reasonable control, including without limitation, fire, flood, war or riot, acts of civil or military authority (including governmental priorities), severe weather, strikes or labor disputes or labor shortages.
10.4 Relationship of Parties. MSL is an independent contractor, and this Agreement does not create any partnership, joint venture, agency, fiduciary, employment or other relationship between the parties. Neither party is, nor will hold itself out to be, vested with any authority to bind the other party contractually or to act on behalf of the other party as an agent. MSL will alone be responsible for its employees and any benefits owned to such employees. MSL may subcontract any portion of the Consultant Services to be performed under this Agreement, provided MSL has first received written consent to do so from Client.
10.5 Severability. In the event that one or more of the provisions of this Agreement should be held invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect.
10.6 Governing Law and Dispute Resolution. This Agreement shall be construed and governed in accordance with the laws of the State of Illinois excluding its conflict of laws provisions. The parties acknowledge that mediation or other alternative methods of dispute resolution may be mutually advantageous and appropriate prior to pursuing their rights at law or equity, and they agree to consider in good faith the possibility of employing such methods in the event of a dispute.
10.7 Notice. All notices required under this Agreement must be in writing and are effective on the date received (unless the notice specifies a later date). Notice shall be sent to the applicable party at the address set forth on the cover sheet to this Agreement.
10.8 Entire Agreement. This Agreement and any and all SOWs executed hereunder represent the entire agreement of the parties relating to the subject matter addressed herein, superseding all other agreements and discussions. Purchase orders may be accepted for administrative convenience only, and conflicting terms found therein are hereby rejected. This Agreement may not be amended except in writing signed by both parties. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement.
End of Standard Terms and Conditions