THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND TRACEAIR TECHNOLOGIES, INC. (“TRACEAIR”). BY EXECUTING A TRACEAIR ORDER FORM THAT INCLUDES THIS AGREEMENT BY REFERENCE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY.
NEITHER TRACEAIR NOR ANY OF ITS EMPLOYEES ARE LICENSED SURVEYORS OR ENGINEERS AND TRACEAIR NEITHER PROVIDES NOR HOLDS ITSELF OUT AS A PROVIDER OF SURVEYING OR ENGINEERING SERVICES. NEITHER THE SERVICES NOR ANY RESULTS OBTAINED THROUGH THE USE OF THE SERVICES SHOULD BE CONSIDERED A SUBSTITUTE FOR THE SERVICES OF LICENSED SURVEYORS AND/OR ENGINEERS.
1.1 Scope. TraceAir shall provide those professional services and hosted software services (collectively “Services”) as set forth in TraceAir ordering documents that are executed by the parties from time to time (each, an “Order Form”). Absent the execution of an applicable Order Form, this Agreement does not, in and of itself, represent a commitment by TraceAir to perform any Services for Customer. The parties may from time to time enter into additional Order Forms that reference this Agreement, each of which shall become effective upon execution by authorized representatives of both parties.
1.2 Manner of Performance. TraceAir shall provide the Services in accordance with the requirements of set forth in the applicable Order Form(s), consistent with the terms of this Agreement, and in a professional manner in accordance with generally applicable industry standards in existence at the time the Services are being performed.
2.1 Suitability. TraceAir shall assign employees, consultants and subcontractors with qualifications suitable for the work described in the relevant Statement of Work. TraceAir may replace or change employees, consultants and/or subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
2.2 Customer Responsibilities. Customer shall perform all Customer responsibilities set forth in applicable Order Forms and shall make available in a timely manner at no charge to TraceAir all technical data, imaging, data, documentation and/or other information and resources of Customer required by TraceAir for the performance of the Services (“CustomerFurnished Items”) as specified in the applicable Order Form or requested by TraceAir. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to TraceAir, access to premises, work sites and/or equipment solely to the extent reasonably required to perform the Services. Customer hereby grants to TraceAir a nonexclusive, worldwide, royaltyfree, fully paidup license to use, publicly perform, publicly display, modify, prepare derivative works of, reproduce, make, have made, import and otherwise exploit each item of the CustomerFurnished Items as reasonably required for the performance of the Services. Customer warrants that it has the right to provide the foregoing license right to TraceAir with respect to any CustomerFurnished Item provided to TraceAir under this Agreement or any Order Form and that neither the CustomerFurnished Items themselves nor their use by TraceAir for purposes of this Agreement will infringe or misappropriate any patent right, copyright, trademark right, trade secret right, moral right, design right, database right, business process or method or other intellectual property or proprietary right of any third party. Customer agrees to defend, indemnify, and hold harmless TraceAir from and against all claims, proceedings, liabilities, costs or damages arising from any breach of the foregoing warranty, or TraceAir’s use of any CustomerFurnished Item, provided that TraceAir’s use is in accordance with this Agreement. Customer acknowledges that TraceAir’s performance is dependent on Customer’s timely, accurate, and effective performance of all Customer responsibilities. Customer further acknowledges and agrees that its failure to satisfy such Customer responsibilities may prevent or delay TraceAir’s performance of the Services and/or require modifications to applicable Order Form(s), including but not limited to adjustments to the schedule and/or fees.
2.3 Noninterference with Business. Customer acknowledges and agrees that the employees of TraceAir who perform the Services are a valuable asset to TraceAir and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of this Agreement, it shall solicit or induce any employee or independent contractor of TraceAir involved in the performance of Services under this Agreement to terminate or breach an employment, contractual or other relationship with TraceAir.
3.1 Fees. Customer shall pay to TraceAir, without offset or deduction, those fees specified in applicable Order Forms. Customer will additionally reimburse TraceAir for any expenses for which reimbursement is expressly contemplated in the applicable Statement of Work. TraceAir will invoice Customer for applicable fees and, unless otherwise provided in in the Order Form, all undisputed fees shall be due and payable within thirty (30) calendar days after the date of the invoice issued with respect thereto. All fees are denominated in United States dollars, and Customer must pay all amounts in United States dollars. TraceAir shall have the right to suspend Services if Customer has failed to pay any properly documented and undisputed invoice within fortyfive (45) days of the date of the invoice.
3.2 Disputed Charges. Customer must notify TraceAir in writing of any dispute or disagreement with invoiced charges within sixty (60) days after the date of invoice. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of the sixty (60) day time period.
3.3 Late Charges. TraceAir reserves the right to charge, and Customer agrees to pay, a late charge equal to one and onehalf percent (1.5%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.
3.4 Taxes. All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on TraceAir’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Customer will make all payments required hereunder to TraceAir free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to TraceAir will be Customer’s sole responsibility, and Customer will, upon TraceAir’s request, provide TraceAir with official receipts issued by the appropriate taxing authority, or such other evidence as TraceAir may reasonably request, to establish that such taxes have been paid.
4.1 Confidential Information. Each party (the “Receiving Party”) hereby understands and acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of TraceAir shall include any and all nonpublic information regarding features, functionality and performance of the TraceAir Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
4.2 Injunctive Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
4.3 Similar Services. For the avoidance of doubt, Customer acknowledges that TraceAir may separately create the same or similar deliverables or provide the same or similar services for other TraceAir customers and doing so will not be a breach of this Section 4.
5.1 Warranties. TraceAir warrants that the Services will be performed in accordance with generally accepted industry standards. Customer’s sole and exclusive remedy for a breach of the foregoing warranty is for TraceAir to reperform the nonconforming Services, on condition that Customer notifies TraceAir in writing of the breach. Claims must be made within thirty (30) days after completion of the Services or are forever waived.
5.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE SERVICES, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY TRACEAIR ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND TRACEAIR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NONINFRINGEMENT, NONINTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY TRACEAIR ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. TRACEAIR DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERRORFREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT TRACEAIR’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY. NO EMPLOYEE, CONSULTANT, SUBCONTRACTOR, AGENT OR OTHER REPRESENTATIVE OF TRACEAIR HAS AUTHORITY TO BIND TRACEAIR TO ANY ADDITIONAL REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES PERFORMED HEREUNDER.
5.3 Limitations. IN NO EVENT SHALL TRACEAIR BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, OR FOR LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF TRACEAIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF TRACEAIR TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THENPAID TO TRACEAIR BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12)MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
5.4 Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
Customer shall indemnify, hold harmless, and, at TraceAir’s option, defend TraceAir and its affiliates, licensors and their respective officers, directors, employees and subcontractors from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with (a) any modification or alteration of any deliverables other than by TraceAir, (b) use of the deliverables other than as specified under this Agreement and the related Order Form, (c) combination or use of the deliverables with nonTraceAir provided data, materials, information or services, (d) compliance by TraceAir with any instructions or specifications provided by Customer, or (e) any acts of Customer in violation of this Agreement.
7.1 Customer Imaging and Data. As between TraceAir and Customer, Customer shall own all right, title and interest (including all intellectual property rights) in and to any images and related data created specifically for Customer by TraceAir or by third parties on TraceAir’s behalf (“Customer Imaging and Data”). TraceAir hereby assigns, transfers and conveys to Customer all right, title and interest (including all copyright rights) in and to all such Customer Imaging and Data (provided that such assignment shall not apply to any PreExisting Intellectual Property (as defined below) or ThirdParty Materials). For purposes of this Agreement, the term “ThirdParty Materials” means any thirdpartyowned images, data, information or other materials that are obtained by TraceAir in the performance of the Services, but are not specifically created for Customer by such third parties.
7.2 License to Customer Imaging and Data. Customer hereby grants to TraceAir a limited, sublicensable nonexclusive, royaltyfree, worldwide license to (a) reproduce, display, publicly perform, distribute and otherwise use the Customer Imaging and Data, and perform all acts with respect to the Customer Imaging and Data as may be necessary for TraceAir to provide the Services to Customer; and (b) use the Customer Imaging and Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other TraceAir offerings.
7.3 TraceAir PreExisting Intellectual Property. TraceAir shall retain all right, title and interest (including all intellectual property rights) in and to any PreExisting Intellectual Property. Inclusion of any PreExisting Intellectual Property in a deliverable does not change its character as PreExisting Intellectual Property. Client will not obtain any rights in PreExisting Intellectual Property other than to use the PreExisting Intellectual Property as incorporated into a deliverable, in conjunction with Client’s permitted use of such deliverable. Customer hereby assigns, transfers and conveys to TraceAir all right, title and interest (including all intellectual property rights) in and to all such PreExisting Intellectual Property. For purposes of this Agreement, the term “PreExisting Intellectual Property” means the following, whether developed by TraceAir in the course of performing the Services under this Agreement or independently of this Agreement: (a) reports, documents, studies, software programs, specifications, and algorithms or other tangible property (including all intellectual property rights embodied therein) developed by TraceAir and/or its consultants and subcontractors; (b) any business methods, methodologies, processes, techniques, knowhow or other intangible property (including all intellectual property rights therein) which are developed by TraceAir and/or its consultants and subcontractors; and (c) any derivative works, enhancements, improvements and/or modifications to any of the foregoing items listed in (a) or (b) above.
8.1 Term. This Agreement shall commence on the date the first applicable Order Form is entered into between Customer and TraceAir and shall remain in effect until the earlier to occur of (a) completion of all outstanding Order Forms hereunder; or (b) termination in accordance with Section 8.2. Unless otherwise stated in the applicable Order Form, the term of each Order Form shall last until performance thereunder is completed.
8.2 Termination for Breach. Except as otherwise provided herein, if either party commits a material breach of any of its obligations under this Agreement, then the other party may give such party written notice of the material breach and of the notifying party’s intention to terminate this Agreement if the material breach is not cured within thirty (30) days (or such later date as may be specified in such notice). Without limiting the foregoing, any failure by Customer to timely pay to TraceAir any amounts owing under this Agreement will constitute a material breach of this Agreement, for which TraceAir may terminate this Agreement immediately upon notice. A party may terminate this Agreement upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice.
8.3 Effect of Termination. Upon expiration or termination of this Agreement, (a) TraceAir may cease provision of the Services to Customer; and (b) all fees and other amounts owed to TraceAir shall be immediately due and payable by Customer. TraceAir shall have no obligation to maintain or provide any Customer Imaging and Data and may thereafter, unless legally prohibited, delete or retain all Customer Imaging and Data in its systems or otherwise in its possession or under its control.
8.4 Survival. The provisions of Sections 3, 4, 5, 6, 7, 8.3, 8.4, and 9 will survive the termination of this Agreement.
9.1 Applicable Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS. CUSTOMER AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN MATEO COUNTY CALIFORNIA.
9.2 Force majeure. TraceAir shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of TraceAir. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
9.3 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the parties to the Agreement and addressed, if to Customer, as set forth on the applicable Order Form or if to TraceAir, to TraceAir 1741 Broadway, 2nd Floor, Redwood City, CA 94063 or addressed to such other address as that party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day.
9.4 Assignment; Delegation. Neither party shall assign its rights or delegate its obligations under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed, and, absent such consent, any purported assignment or delegation by either party shall be null, void and of no effect. Notwithstanding the foregoing either Party may assign any of its rights or delegate any of its duties hereunder pursuant to a merger or a sale of all or substantially all of its assets or capital stock. This Agreement shall be binding upon and inure to the benefit of TraceAir and Customer and their successors and permitted assigns.
9.5 Independent Contractors. Customer and TraceAir acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the parties are acting as independent contractors in making and performing this Agreement.
9.6 Amendment. No amendment to this Agreement or any Agreement shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the parties.
9.7 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder shall not be deemed a waiver of that right.
9.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
9.9 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
9.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.
9.11 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
9.13 Order of Precedence. In the event that a conflict is deemed to arise between the provisions of this Agreement and the provisions of any Order Form, the provisions of this Agreement shall govern.
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TraceAir Technologies Inc.
Attn: Legal – Master Services Agreement
Redwood City, CA 94063