Master Services Agreement

‍‍This MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into as of _________________, 2023 (the “Effective Date”) by and between AppEvolve, LLC, an Idaho limited liability company, with information identified below (“AppEvolve”), and the undersigned party, with information identified below (“Client”).

This Agreement, and the Statement of Work(s) (as described below) issued pursuant to this Agreement from time to time, and all other exhibits attached hereto, all of which are incorporated herein and made a part hereof, sets forth the terms and conditions under which AppEvolve will provide the Services. All of the Services that may be provided and/or materials that may be developed by either party in connection with its performance under this Agreement will be governed by the terms of this Agreement.

CLIENT HAS READ AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE TERMS CONTAINED ON THE FOLLOWING PAGES HEREOF, AS OF THE EFFECTIVE DATE.

1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms will have the following meanings:

“Confidential Information” means all non-public confidential and proprietary information of a party, including trade secrets, know-how and proprietary information, firmware, methods, processes, techniques, algorithms, plans, designs, data, marketing plans, financial or personnel matters, present or future products, sales, suppliers, customers, employees, investors or affiliates, that is disclosed or otherwise supplied to the other party and is disclosed under circumstances that would lead a reasonable person to understand that such information is confidential or proprietary.

“Client-Specific Materials” means all Materials that: (a) are developed by AppEvolve uniquely for Client, are not generally reusable for other clients of AppEvolve, and are identified in applicable Specifications or Statements of Work as Client-Specific Materials, or (b) are Client Works, Client Confidential Information or Client Provided Third Party Materials. Client-Specific Materials does not include Reusable Materials or Third-Party Materials.

“Client Provided Third Party Materials” means all third-party Materials provided by Client to AppEvolve for inclusion into or for development of the Deliverables.

“Client Works” means any Materials owned by Client and provided to AppEvolve for inclusion into or development of the Deliverables.

“Deliverables” means the Client-Specific Materials and Reusable Materials that AppEvolve delivers to Client as specified by Specifications in connection with a Statement of Work.

“Intellectual Property Rights” means any rights to (a) works of authorship, including, but not limited to, copyrights and moral rights, (b) trademark or trade name rights, (c) trade secret rights, (d) inventions, or designs, or other industrial property, including patent rights (e) all other intellectual property rights (of every kind and nature) whether arising by operation of law, contract, license, or otherwise, and (f) all applications and registrations therefore.

“Materials” means any text, illustrations, graphics, sound, animation, video, photographs, databases, marks, organizational features and structures, algorithms, concepts, data, designs, developments, documentation, discoveries, HTML, XML and other codes, multimedia files (including audio, graphic, photographic, and video files), object code, source code, web pages and other tangible materials.

“Reusable Materials” means any Materials provided by AppEvolve to Client that are: (a) created by or for AppEvolve independent of this Agreement; (b) created by or for AppEvolve and are not otherwise Third-Party Materials or Client-Specific Materials; or (c) Materials (such as functions, software libraries, or software modules) used or created by or for AppEvolve that are broadly reusable across different software applications and are not specific to any single industry, field, end-user, or use case, including, but not limited to, design tools, frameworks, methodologies and third-party source code, and any derivative works of the foregoing.

“Specifications” means those functional, graphical and other specifications for the Deliverables defined and agreed upon by the parties in writing in connection to any applicable Statement of Work.

"Statement of Work" means each statement of work issued pursuant to this Agreement, the form of which is set forth in Exhibit A, which becomes an integral part of this Agreement when signed by an authorized representative of each party.

“Third-Party Materials” means Materials and information, in any form or medium, including any software (including open source software), documents, data, content, specifications, products, equipment, or components of or relating to the Deliverables that are not proprietary to AppEvolve.

2. Services. Subject to the terms and conditions of this Agreement and each Statement of Work, AppEvolve will work as an independent contractor to develop and deliver the Deliverables and/or provide personnel to perform the consulting or other services described in each Statement of Work (the “Services”). To the extent that the Services include services commonly understood to be “white label services”, the parties shall execute the White Label Services Addendum, attached hereto as Exhibit B and incorporated herein by reference.

3. Ownership and Licenses.

3.1. Client-Specific Materials. As between Client, AppEvolve, and AppEvolve’s agents and contractors, and subject to Client’s full and faithful performance of all obligations under this Agreement (including the payment of all fees), AppEvolve agrees that the Client-Specific Materials (including software developed by AppEvolve for Client) shall be the sole and exclusive property of Client. Subject to the terms and conditions of this Agreement, AppEvolve agrees to provide any assignments or certificates of acknowledgment as Client may reasonably require and reasonably acceptable to AppEvolve to effectuate Client’s ownership rights hereunder. Ownership of all Third-Party Materials, and all intellectual property rights therein, is and will remain with the respective owners thereof, subject to any express licenses or sublicenses granted pursuant to or in accordance with this Agreement.

3.2. Licenses to Reusable Materials.

(a) Subject to the terms and conditions of this Agreement, including, the full payment of all amounts due hereunder, except as otherwise specifically provided in the relevant Statement of Work, AppEvolve hereby grants to Client a nonexclusive, worldwide, perpetual, royalty-free, and non-transferable license to: (i) use, copy, distribute, perform, display, store, edit, format, translate and create derivative works of the Reusable Materials related to or required for the functioning of the Deliverables; (ii) permit third-party independent contractors of Client to exercise the foregoing rights to maintain, support, change, improve or operate the Deliverables; and (iii) offer or sell products or services which utilize or incorporate the Deliverables and derivative works thereof.

(b) AppEvolve is the sole and exclusive owner of all Reusable Materials and, except for the foregoing license, reserves all rights therein and thereto. Except as expressly permitted in this Agreement, Client will not, and will not allow any third party to (i) sell, license, transfer, disclose, or otherwise use or access to the Reusable Materials, or (ii) otherwise copy, modify, distribute, decompile, reverse engineer or otherwise attempt to derive, obtain or modify the source code of any Reusable Materials.

3.3. License from Client. Client hereby grants to AppEvolve a nonexclusive, royalty-free license to use, copy, distribute, transmit, perform, display, modify, translate, and create derivatives of the Client Works and Client Provided Third-Party Materials exclusively for the purpose of enabling AppEvolve (including its independent contractors) to perform the services.

3.4. Residual Rights. Notwithstanding the other provisions of this Agreement, each party will be free to use for itself and for others in any manner the general knowledge, skill, know-how, expertise, methods, techniques, or experience acquired by that party in the course of performing its obligations under this Agreement, including using that knowledge for any present or future customer or other business partner, unless such general knowledge, skill or experience is based on or derived from Confidential Information provided by the other party.

4. Responsibilities. 

4.1. Client’s Responsibilities. Client will cooperate with AppEvolve to assist AppEvolve with AppEvolve’s performance of the Services. The fees listed under each Statement of Work are based on the time schedule set forth in such Statement of Work. Any delays caused by Client (including, delays in performing any of required approvals, reviews, edits, and notices within the time periods required by this Agreement and applicable Statements of Work) may impact AppEvolve’s ability to perform the Services in accordance with the fee and time schedule set forth in such Statement of Work.

4.2. AppEvolve’s Responsibilities. AppEvolve and Client will jointly define the Specifications and AppEvolve will: (a) perform the work in accordance with the Specifications; (b) assign a project manager who is responsible for managing the day-to-day activities, reporting and resource allocation; and (c) subject to the terms and conditions of this Agreement and any Statement of Work, AppEvolve shall be responsible to perform the Services and deliver all Deliverables in accordance with the Specifications.

5. Fees and Payment.

5.1. Fees. Client will pay the amounts set forth in each applicable Statement of Work to AppEvolve according to the schedule set forth therein and reimburse AppEvolve for all reasonable additional direct expenses required to perform the Services. Any additional direct expenses in excess of $1,000 in any calendar month shall require advance written approval by Client.

5.2. Payments. Invoices: Client will make payments based on the terms specified in the applicable Statement of Work (SOW). AppEvolve will send an invoice to the "Client Invoice Address" as indicated in the SOW. All payments shall be made in United States currency. Payment Terms: The specific payment terms, including due date and any applicable late fees or discounts, will be listed in the corresponding SOW. Late Payments: AppEvolve reserves the right, in addition to any other rights it may have, to suspend the Services until any late payment is made in full. Address Details: In the event that no Client Invoice Address is set forth on the applicable SOW, the Client's address provided in this MSA shall apply.

5.3. Sales and Use Taxes. AppEvolve’s fees and charges do not include, and Client will pay or reimburse AppEvolve for, any sales, use, excise, or similar taxes, if any, which may be assessed on the Deliverables or the Services at any time (except for taxes on AppEvolve’s net income), or in lieu thereof, Client will provide AppEvolve with a certificate acceptable to the taxing authorities exempting AppEvolve from any obligation to pay such taxes.

6. Confidentiality Obligations.

6.1. Restrictions on Use of Confidential Information. Each party will at all times: (a) keep in confidence all Confidential Information provided to it by the other party; (b) use such Confidential Information solely for purposes of this Agreement; and, (c) will not disclose such Confidential Information to any person except its employees, advisors and independent contractors to whom it is necessary to disclose the Confidential Information for purposes of this Agreement and who have agreed in writing to receive it under terms at least as restrictive as those specified in this Agreement. Each party will take no less than reasonably prudent measures to maintain the confidentiality of the other party’s Confidential Information. Each party will immediately give notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information of which it becomes aware.

6.2. Non-Confidential Information. The restrictions relating to Confidential Information contained in this Agreement will not apply to or will cease to apply to any information beginning three (3) years after receipt of such information by the other party and/or to the extent that such information: (a) is or becomes publicly available other than through any act or omission of either party in breach of this Agreement; (b) was received by the receiving party from a third-party who had no obligation of confidentiality to the other party; and/or (c) was in the possession of the receiving party at the time of the disclosure or was independently developed by the receiving party. In addition, nothing in this Agreement will prevent a party from disclosing Confidential Information required to be disclosed because of a court order or other legal process; to the extent permissible under law, prior to such disclosure the party required to disclose such Confidential Information will give notice to the other party so that the other party may take reasonable steps to oppose or limit such disclosure, and the disclosing party will not disclose any more information than necessary to comply with such court order or legal process.

6.3 Return of Confidential Information. Promptly upon written notice from the disclosing party, the receiving party will return to the disclosing party or destroy, at the disclosing party’s reasonable instruction, any Confidential Information of the disclosing party.

7. Representations and Warranties.

7.1. Each party represents and warrants to the other party that (a) such party’s execution and delivery of this Agreement and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third-party under any agreement to which such party is bound or to which such party’s properties are subject; and (b) such party will comply with all applicable laws, rules, orders, statutes, and regulations in connection with the performance of its obligations under this Agreement.

7.2. AppEvolve further represents and warrants to Client that AppEvolve will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

7.3. Disclaimer Regarding the Services and Deliverables. EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEDING SECTIONS 7.1 AND 7.2, APPEVOLVE HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE WITH RESPECT TO THE SERVICES, DELIVERABLES, OR OTHER ITEMS PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE OR DELIVERABLES WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF HARMFUL COMPONENTS, OR SECURE, AND ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above limitations may not apply to Client if expressly prohibited by applicable law.

8. Indemnification.

8.1. Indemnification Obligation

(a) AppEvolve will indemnify and defend Client, and its directors, officers, employees and agents, against all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) in any claim, action, suit or proceeding brought by a third-party (individually and collectively, “Claim”) alleging that the Deliverables (excluding Client Works, Third-Party Materials, Client Confidential Information or Client Provided Third-Party Materials) delivered by AppEvolve hereunder infringe or misappropriate any third-party’s Intellectual Property Rights. If a court enjoins the use of any such Deliverable, or if in AppEvolve’s reasonable opinion, any such Deliverable is likely to become the subject of a Claim or to violate any applicable law, rule or regulation, AppEvolve will have the right, without any additional cost to Client, to (i)obtain for Client a royalty-free license to continue using such Deliverable, (ii) modify such Deliverable or provide a replacement therefore so that it becomes non-infringing or no longer violates the applicable law, rule or regulation without any material loss of functionality as required by the applicable Specifications, or (iii) terminate this Agreement or applicable Statement of Work with respect to such Deliverables and refund to Client the fees actually paid by Client therefore, prorated on a straight-line, 7-year depreciation basis. AppEvolve will have no obligation under this Section for any Claim (A) if AppEvolve has offered modified or replacement Deliverables and the Claim or liability results from Client’s failure to use such; (B)use of the Deliverables in a combination with materials, services or products not supplied by AppEvolve; (C) modifications to the Deliverables by any party other than AppEvolve; or (D) to the extent the basis of such Claim is attributable to Specifications or other instructions of Client.

(b) Client will indemnify and defend AppEvolve, and its affiliates, directors, officers, employees and agents, against all losses, liabilities, judgments, awards and costs (including reasonable legal fees and expenses) in any Claim arising out of Client’s breach of any of Client’s express representations and warranties under this Agreement or any actual or alleged infringement or misappropriation of any third-party’s Intellectual Property Rights attributable to Client Works, Client Confidential Information or Client Provided Third Party Materials, or any circumstances identified in subsection (A)-(D) of the immediately preceding paragraph.

8.2. Notice and Assistance. An indemnifying party under this Section will only be obligated to provide indemnification under this Agreement if the indemnified party: (a) notifies the indemnifying party promptly in writing of the Claim; (b) permits the indemnifying party sole control to defend, compromise or settle the Claim (provided the indemnifying party may not settle any Claim without the consent of the indemnified party where the settlement involves a remedy other than the payment of money); and (c) provides all available information, assistance and authority at the indemnifying party’s reasonable expense to enable the indemnifying party to defend the Claim. The indemnified party may participate in the defense or settlement of any Claim at its own expense.

8.3. Sole Remedy. The obligations of this Section are AppEvolve’s and Client’s sole and exclusive remedies with respect to claims of infringement of Intellectual Property Rights and other proprietary rights of any kind.

9. Limitation of Liability. TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EVEN IF APPEVOLVE OR CLIENT, RESPECTIVELY, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES: (A) APPEVOLVE’S AND CLIENT’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED, PER CLAIM AND IN THE AGGREGATE, THE AGREED CONTRACTED VALUE FOR THE SERVICES UNDER THE APPLICABLE STATEMENT OF WORK UNDER THIS AGREEMENT AND ANY AND ALL REASONABLE COSTS AND ATTORNEYS’ FEES THAT MAY BE PAYABLE UNDER SECTION 13.4, AND (B) EXCEPT IN CONNECTION WITH A BREACH OF SECTION 6, OR THE USE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS IN A MANNER NOT AUTHORIZED BY THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, (INCLUDING ANY LOSS OF PROFITS, REVENUES, OR OTHER ECONOMIC ADVANTAGE) INCURRED BY THE OTHER ARISING OUT OF OR RELATING TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY.

10. Term and Termination.

10.1. Term. This Agreement will commence as of the Effective Date, and unless otherwise terminated in accordance with its express terms, will continue until the last of the Services is performed under any applicable Statement of Work.

10.2. Termination.

(a) Except as set forth in any Statement of Work, either party may terminate this Agreement or any Statement of Work (i) for a material breach by the other party (including any breach of any payment obligation or any delay by Client as provided in a Statement of Work) hereunder or thereunder, as the case may be, upon giving fifteen (15) days written notice to the breaching party, provided that such breach is not cured during such fifteen (15) day period; or (ii) if the other party files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law.
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(b) Except as set forth in any Statement of Work, either party may terminate this Agreement or any Statement of Work for convenience and without cause at any time by providing the other party written notice at least thirty (30) days prior to the termination date designated in that notice.

11. Effect of Termination.

11.1. Termination of Services. Upon the expiration or termination of this Agreement or any Statement of Work, AppEvolve will cease performance of all applicable Services and, promptly following receipt of payment of all amounts then due and if Client is not otherwise in breach of this Agreement, deliver to Client all Client-Specific Materials, Client Works, Client Provided Third Party Materials, Materials required for the operation of the Deliverables (including source code, deployment scripts, configurations, software and hosting service credentials and the like) and other items and property of Client with respect thereto existing as of the date of such expiration or termination.

11.2. Payment. Upon the expiration or termination of this Agreement or any Statement of Work, Client will pay AppEvolve for all amounts due to AppEvolve as of the date of the effective date of such termination, as well as any charges and expenses for the Deliverables in development, if any (on a time and materials basis and at the prices set forth in each Statement of Work).

11.3. Survival. Sections 1, 6, 7, 8, 9, 11, and 12, will survive any expiration of termination of this Agreement in accordance with their terms. Unless this Agreement is terminated for Client’s breach of this Agreement, the licenses granted to Client under Section 3.2 will survive in accordance with the terms and conditions hereof, including payment of all fees due with respect to such licenses, subject to termination by AppEvolve for Client’s material breach of such obligations.

12. The Deliverables may include or operate in conjunction with Third-Party Materials. All Third-Party Materials are provided pursuant and subject to the terms and conditions of any applicable third-party license agreement. Client shall comply with all such third-party license agreements that are publically available or made available to or provided to Client by AppEvolve, and any material breach by Client thereof will be deemed a breach of this Agreement. All Third-Party materials are provided "AS IS" and AppEvolve makes no representations or warranties of any kind with respect to the same.

13. Miscellaneous.

13.1. Notices. Except as otherwise may be set forth in this Agreement, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at the addresses set forth in this Agreement (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13.1. Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent by email (with confirmation of transmission and no automated message delivery failure or out-of-the-office message is received) if sent between the hours of 9:00 a.m. and 4:00 p.m. (MT) on a business day, and on the next business day, if sent outside the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

13.2. Assignment and Subcontracting. Neither party will, directly, by operation of law, or otherwise, assign this Agreement without the prior written consent of the other; provided that no consent will be required in the event of a merger or sale of substantially all of the assets of a party where the other party to the same delivers a full assumption of such party’s obligations hereunder. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. Any assignment or attempted assignment of this Agreement not permitted by this Section 13.2 will be void. AppEvolve may enter into contracts with subcontractors to perform its obligations under this Agreement.

13.3. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Idaho without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

13.4 Binding Arbitration. Both parties agree to resolve any dispute, claim, or controversy arising out of or relating to this Agreement as follows: (a) first, the parties agree to attempt in good faith to resolve the dispute through informal resolution; (b) second, if the dispute is not resolved through informal resolution, the parties agree to attempt in good faith to resolve the dispute through mediation administered by JAMS Virtual Mediation, the costs of which shall be divided equally between the parties; and (c) if the dispute is not resolved through informal resolution and mediation, the parties agree to participate in JAMS Virtual Arbitration. The arbitrator must be either: (i) a retired judge; or (ii) a lawyer with no less than 10 years of active practice in business law. The parties agree that in the event of arbitration (or a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing party shall be entitled to reasonable costs and fees (including reasonable attorneys’ fees).

13.5. General. Should any provision of this Agreement be held invalid or unenforceable, the parties will promptly amend the invalid provision to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will remain in full force. Waiver by either party of the breach of any provision of this Agreement by the other party will not operate or be construed as a waiver of any subsequent, similar or other breach by the breaching party.

13.6. Force Majeure. Neither party will be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement, except for Client’s obligations to pay AppEvolve under this Agreement, to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including any act of God, fire, natural disaster, accident, war, acts of war (whether war be declared or not), insurrections, riots, civil commotion, acts of terrorism, strikes, lockouts or other labor disturbances, shortages in the marketplace, or any acts, omissions or delays in acting by any governmental authority or the other party. [Notwithstanding anything to the contrary, no force majeure event shall excuse a party’s obligations to make payments to the other party under this Agreement for more than 10 consecutive days.]

13.7. Relationship of the Parties. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership between the parties. The relationship of the parties is, and at all times will continue to be, that of independent contractors.

13.8. No Third-Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties to this Agreement and is not intended to convey any rights or benefits to any third party, nor will this Agreement be interpreted to convey any rights or benefits to any person except the parties to this Agreement.

13.9. Entire Agreement. This Agreement may be executed in any number of counterparts, each of which will be an original as against any party whose signature appears thereon and all of which together will constitute one and the same instrument. This Agreement, together with any Statement of Work(s) issued under this Agreement, constitutes the entire agreement between Client and AppEvolve with respect to its subject matter and supersedes and merges herein all previous or contemporaneous agreements and understandings with respect to such subject matter, including, as may be applicable to any existing services, deliverables, statements of work or other written agreements that may exist between the parties, all of which will be deemed hereby referenced, incorporated and subject to this Agreement. This Agreement may be amended only by written agreement of the parties which is signed by authorized representatives of both parties.

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