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master services agreement

Effective Date: January 17, 2023

Version 8.1

This Master Services Agreement ("Agreement") shall apply to and govern the relationship by and between Summit Technologies, LLC (“Summit”) and Client for the purpose of providing professional services ("Services") or deliverables ("Deliverables") for technology professional services, including but not limited to: software development, implementation, integration, consulting, or any activities pertaining to the software development lifecycle as defined by the applicable Statement of Work(s), project, quote, letter of intent or any other document ("SOW") executed and agreed upon by both Summit and Client.

 

1. Term

This Agreement shall commence on the date Client acknowledged acceptance by execution of the applicable SOW and shall continue until terminated by either party.

 

2. Services to be Provided and Intellectual Property Rights

     a.     Summit shall provide the Services or Deliverables mutually agreed upon by both parties and set forth by the applicable SOW. All data and information necessary for Summit to conduct project assignments will be provided by Client to Summit. All data, programs, software, and information generated or derived by Summit as the result of services performed by Summit under this Agreement shall be and remain the exclusive property of Client. Client acknowledges that Summit has pre-exisiting intellectual property, including computer technical expertise and software which have been independently developed by Summit without the benefit of any information provided by Client (“Pre-existing IP”). Client and Summit agree that such Pre-exisiting IP, which includes computer software programs, statistical methodologies or other formulae or analyses used by Summit during the term of this Agreement, are the product of Summit's technical expertise possessed and developed by Summit prior to the date of the Agreement and are the exclusive property of Summit.

     b.     Client shall own all rights, title and interest in and to the Deliverables. The rights, title and interest in and to the Deliverables shall be granted to the Client only upon receipt of full payment by the Summit.Client shall not own or claim to own Summit’s Pre-Existing IP.

     c.     To the extent that the Deliverables incorporates Summit’s Pre-existing IP and such Pre-Existing IP is required for the proper functioning of the Deliverables, Summit grants to Client a perpetual, non-exclusive, worldwide, transferable, royalty-free license to use such Summit Pre-Existing IP solely along with the Deliverables provided Client has not breached this Agreement.

3. Confidentiality

     a.     “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally, electronically, in writing, or by inspection of tangible objects (including, without limitation, documents or prototypes), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information. Confidential Information includes without limitation, either party’s business and marketing plans, technology and technical information, product designs, reports and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.

     b.     Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose other than performance or enforcement of this Agreement without Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any breach of confidentiality of Disclosing Party's Confidential Information.

     c.     Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request and to the extent practicable, destroy all materials containing such Confidential Information. Notwithstanding the foregoing, either Party may retain a copy of any Confidential Information if required by applicable law or regulation, in accordance with internal compliance policy, or pursuant to automatic computer archiving and back-up procedures, subject at all times to the continuing applicability of the provisions of this Agreement.

 

4. Representations & Warranties

     a.     Summit represents and warrants that its services shall be performed by personnel possessing competency consistent with applicable industry standards.

     b.     Client represents and warrants that the materials provided to Summit for use in connection with the services provided under this Agreement will not infringe upon the intellectual property rights of any third party.

     c.     EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATION, EXPRESS OR IMPLIED, AND NO WARRANTY OR GUARANTEES ARE INCLUDED OR INTENDED BY SUMMIT IN THIS AGREEMENT OR ANY DELIVERABLE OR WORK PRODUCT. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY SUMMIT CONCERNING THE MATTERS COVERED BY THIS AGREEMENT AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING IMPLIED OR STATUTORY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

5. Independent Contractor Relationship

For the purposes of this Agreement, the parties hereto, Summit and Client, are independent contractors and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint ventures.

 

6. Limitation of Liability

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION.SUMMIT’S MAXIMUM TOTAL LIABILITY FOR ANY CLAIMS RELATING TO ANY SPECIFIC SOW IS LIMITED TO THE FEES PAID BY CLIENT TO SUMMIT PURSUANT TO THE INVOICES DIRECTLY RELATED TO SAID SOW. THIS SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ASSERTED.

 

7. Indemnification

Client shall indemnify, defend and hold harmless Summit, its affiliates and its and their respective directors, officers, employees and agents (each, an "Indemnified Party") from and against any and all losses, claims, actions, damages, liabilities, costs and expenses, (including reasonable attorney's fees and court costs) (collectively, "Losses"), relating to or arising from or in connection with this Agreement (including, without limitation, any Losses alleged to arise from or in connection with any analysis, test, product or potential product to which this Agreement relates) or any litigation, investigation or other proceeding relating to any of the foregoing.

 

8. Termination

Either party may terminate the Agreement upon ten (10) business days’ notice to the other party in writing. In case of termination, Summit shall be paid for the Services or Deliverables provided on a pro-rata basis.

 

9. Non-Hire and Defamation Prohibition

During the term of this Agreement and for twelve (12) months thereafter, neither party will directly nor indirectly recruit, solicit or induce any employee, consultant, or agent of the other party to terminate his or her relationship with such other party without the prior written permission of the other party. Furthermore, the parties covenant and agree that in no event, and at no time during the Term or at any time thereafter, shall either of them disparage, denigrate, slander, libel or otherwise defame the other or the other's businesses, services, properties or assets, or employees, personnel, agents, or representatives.

 

10. Completion Criteria and Approval Process

Client agrees that if Summit accomplishes activities described within an SOW and Client accepts such activities and materials without unreasonable objections, it shall be deemed that Summit fulfilled its obligations to Client. Furthermore, if there is no response from Client within 2 business days of Deliverables being delivered by Summit, it shall also be deemed that Summit fulfilled its obligations to Client.

 

11. Payments & Expenses

     a.     Payment will be made by Client according to terms stated on invoice. In the event there is a delay in payment for more than five (5) business days from the payment due date, the Client shall be liable to pay an interest of one-and-a-half percent (1.5%) per month or maximum permitted by applicable law, whichever is less, on the delayed payments from the due date of payment.

     b.     Summit shall be reimbursed by Client for all usual and customary travel and lodging expenses incurred in the performance of services provided herein which have been requested or approved by Client. Payment for such services shall be made to Summit within five (5) business days of receipt by Client of invoices or other evidence of such expenditures.

     c.     In the event that Summit deems it appropriate to seek legal recourse to collect past due invoices, Summit shall be entitled to recover all costs and expenses, including attorney fees and court costs, incurred in connection with such action from Client.

     d.     Summit shall be relieved of its obligations under this Agreement in the event of non-payment of the fees or expenses due and shall retain the rights in the Services for which the amount is outstanding.

 

12. Notices

Any notice required or permitted to be given hereunder by either party hereunder shall be in writing and shall be deemed given on the date received if delivered personally or three (3) business days after the date postmarked if sent by registered or certified U.S. mail, return receipt requested, postage prepaid or by nationally recognized overnight delivery service to addresses set forth on the execution page of each applicable SOW.

 

13. Force Majeure

Neither party shall be liable for any failure or delay in fulfilling the terms of this Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, act of nature or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure. This provision shall not be construed as relieving either party from its obligation to pay any sum due to the other party.

 

14. Entire Agreement and Governing Law

     a.     This Agreement shall constitute the complete agreement between the parties respecting the subject matter. This Agreement may not be extended, amended, terminated, or superseded except by agreement in writing between the parties.

     b.     This Agreement supersedes all previous agreements between the Summit and the Client, whether oral or written, regarding subject matter hereof, standard terms and conditions of a purchase order or an invoice or any similar document whether hosted on party’s website or otherwise, shall be ineffective.

     c.     No provision of this Agreement will be construed against or interpreted to the disadvantage of any party because that party had or is deemed to have drafted the provision.

     d.     There are no intended third-party beneficiaries to this Agreement. Each Agreement may be executed in one or more counterparts (including scanned copies), all of which when signed and taken together constitute a single agreement between the parties.

     e.     The terms of this Agreement shall be governed, interpreted and construed in accordance with the laws of State of Ohio, without regard to conflict of law provisions.

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