This Master Service Agreement (herein, Agreement ) is made and entered into as of this day of ___, 20__ , (the Effective Date ) by and between: Vast Edge, Inc., a California corporation, with offices at 1601 Civic Center Drive, Suite 204, Santa Clara, California 95050, United States of America, (herein, Vast Edge ), and _______ of ________ (herein, Client ). Here in after, Vast Edge and Client are sometimes referred to jointly as the Parties or singularly as a Party.
WHEREAS, the Client desires to have software developed by Vast Edge; and
WHEREAS, Vast Edge represents that it has the expertise to develop such software; and
WHEREAS, Vast Edge desires to develop software for Client upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
The following capitalized terms, when used in this Agreement, shall have the meanings ascribed to them in Section 1:
Under no circumstances shall Vast Edge, its contracted providers, officers, agents, or anyone else involved in creating, producing, or distributing Client's Product be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Product; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Client's records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on said Hosting Service. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE (AS DEFINED IN SECTION 0). THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
Vast Edge MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Vast Edge and Client acknowledge and agree that their obligations of confidentiality concerning Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
Except concerning payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
This Agreement shall be governed and construed by the laws of the United States and the State of California, and the parties irrevocably consent and unconditionally agree to the sole and exclusive jurisdiction of the state courts and U.S. federal courts having jurisdiction in Santa Clara County, California for any dispute arising out of this Agreement, and all courts competent to hear appeals therefrom.
The relationship of Vast Edge to Client will be that of an independent contractor, and neither Vast Edge nor any employee of Vast Edge will be deemed to be an agent or employee of Client. It is expressly understood that this undertaking is not a joint venture.
Any written notice or demand required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, and (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail
This Agreement and all exhibits, schedules, and Change Order(s) set forth the entire agreement between the parties about the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other to the subject matter of this Agreement, except as referenced herein. This Agreement may be amended only by a written agreement signed by both parties.
In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
Neither party shall be deemed by the mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or other breaches of the same or other provisions of this Agreement.
The following provisions shall survive termination or expiration of this Agreement: Sections 3 (Fees, Expenses, and Payment), 4 (Intellectual Property Rights and License), 5 (Term and Termination), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), 8 (Third Party Disclaimer), 9 (Indemnification obligations) 10 (Confidentiality), 12 (Choice of Law; Venue; Limitation of Actions), 16 (Disputes), 17 (Severability), and 19 (Survival).
Unless indicated otherwise, all references to "days" shall mean calendar days other than Saturdays, Sundays and United States federal holidays
This Agreement shall not be binding upon Vast Edge until it has been signed by an officer of Vast Edge.
The Client unconditionally warrants and guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Vast Edge, Inc. and/or its assigns for inclusion in the Product are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Vast Edge, Inc. its assigns and its subcontractors from any liability (including attorney's fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client
Additionally, in the event Client elects to install or seek assistance from Vast Edge in connection with the installation of any third-party software, the following terms shall apply. Client represents and warrants that Client has the right to use and install the third-party software and has paid the applicable licensing fees for the third-party software, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. Client agrees to defend, indemnify and hold harmless Vast Edge and its employees, officers, and directors for, from, and against any claims brought against Vast Edge and its employees, officers, and directors by a third party alleging the software infringes: (i) the third-party rights; or (ii) a U.S. patent, trademark, copyright or other intellectual property right. Client agrees that in such an event Client shall pay all resulting costs, damages, expenses, and reasonable attorney fees that a court awards and settlements incurred by Vast Edge in connection with any such claims
The Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Vast Edge and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client's use of Internet electronic commerce. Vast Edge, Inc. warrants that it will secure, as needed on e-commerce sites, a valid SSL certificate on any site that will transmit, receive, process, or have access to sensitive data of any sort.
Client may only use the Product for lawful purposes.
Neither party may assign this Agreement or any of its rights or obligations or the license hereunder, without the prior written consent of the other.
Vast Edge reserves all rights not specifically granted herein.
The remedies available to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity, or by statute.
IN WITNESS WHEREOF, Vast Edge and Client have executed this Agreement effective as of the date and year first written above.
Name of Clients Authorized Representative: __________ By:______________ (Authorized Agent for Vast Edge, Inc.)
Name of Client Company:__________ Vast Edge, Inc., a California Corporation
Title of Clients Authorized Representative: __________
Social Security Number / Tax I.D: __________