HomeMy WebLinkAbout20- Master Service Agreement - MCCi Laserfiche UpgradeMASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 1 of 7
This Master Services Agreement No. 60994 ("Agreement") is effective
on the date of the last signature, (“Effective Date”) and is made by
and between MCCi, LLC, a Florida limited liability company, and its
Affiliates with its principal office located at 3717 Apalachee Parkway,
Suite 201, Tallahassee, FL 32311 (“MCCi") and Client (defined herein).
MCCi and Client may each be referred to individually herein as “Party”
or collectively as the “Parties”.
The terms “Client” in this Agreement shall also include Client’s
“Affiliates,” defined as a legal entity that directly or indirectly controls,
is controlled by, or is under common control with the party. It is agreed
that Client’s Affiliates shall enjoy the same rights, benefits and obligations
set forth in this Agreement as are applicable to Client.
The Parties hereto intending to be legally bound hereby, agree as follows:
1. Scope of Service
MCCi and Client may develop and enter into one or more sales orders,
attached herein or incorporated by reference, incorporating a description
of the specific goods and/or services requested by Client (each, and as
modified in writing by the Parties, an “Order”). MCCi will provide to
Client those goods and/or services described as its obligation in the Order
(collectively, the “Services”). If applicable, each Order will also describe
items specifically required to be delivered by MCCi to Client (the
“Deliverables”), and the acceptance criteria for each of the Deliverables.
Further, each Order will set forth, among other things, tasks to be
performed by the Parties and roles and responsibilities of each Party.
Each Order shall specifically identify this Agreement and indicate that it
is subject to the terms hereof. To the extent there are any conflicts or
inconsistencies between this Agreement and any Order or Client
purchase order, except in regard to Sections 2 or 3 herein, the provisions
of this Agreement shall govern and control. To the extent that there are
any conflicts or inconsistencies between this Agreement and any Client-
entered third party government purchasing agreement (“Purchasing
Vehicle”, the provisions of the Purchasing Vehicle shall govern and
control.
No change order, notice, direction, authorization, notification or request
(collectively, “Change Order”) will be binding upon Client or MCCi, nor
will such Change Order be the basis for any claim for additional
compensation by MCCi, until Client and MCCi have agreed in writing to
change the terms of an applicable Order, or to execute a new Order, as
appropriate.
2. Fees
Client shall pay to MCCi the fees and other compensation set forth in
each Order. By executing the applicable Order, Client acknowledges their
pre-approval for any Order Expenses quoted. Unless otherwise specified,
Client will also reimburse MCCi for all reasonable out-of-pocket travel,
living and other ancillary expenses paid or incurred by MCCi in connection
with the Services (“Order Expenses”). If relevant, MCCi will follow
Client’s expense policy, to the best of its ability. If a dispute occurs
regarding MCCi’s billing of Order Expenses in conformity with Client’s
expense policy and greater than five percent (5%) of a specific bill, such
dispute will be subject to investigation and correction; otherwise Client
agrees to reimburse MCCi for the full amount of expenses billed. The
Client acknowledges that it may incur expenses due to circumstances
such as non-refundable airline tickets, training/install charges, hotel
reservations, rental cars, etc., in the event that i) Client cancels or
reschedules the event, after MCCi has made these arrangements; or ii)
If Client site/team is not prepared upon MCCi’s arrival, which results in
cancellation, delays, and/or the need to reperform Deliverables.
Client acknowledges that the price of the license and/or subscription for
the use of a third-party licensed product is subject to increases during
the term of the license and/or subscription or at the time of renewal. In
the event that MCCi is reselling a license and/or subscription to a third-
party product to Client with at least 15 days prior to written notice (an
email will be sufficient) of an increase in the price of the license and/or
subscription. To the extent that Client does not agree to pay such
increase in the license and/or subscription, Client must provide written
notice to MCCi within 15 days of notice of such increase. Upon receipt
of such notice, MCCi will cancel Client’s license and/or subscription to the
third-party licensed product.
3. Invoicing and Payment
Unless otherwise stated in an Order, MCCi will invoice Client for all fees,
charges and reimbursable expenses on a monthly basis and upon
completion of each Order.
Client agrees to pay all undisputed invoices and undisputed portions of
a disputed invoice in full within thirty (30) days from the date of each
invoice. Failure to pay invoices by the due date, unless MCCi has been
informed by said due date that an invoice is being contested and the
reason therefore, may result in the imposition of interest charges to the
extent allowable by law as well as any associated legal and collection
fees incurred.
Client further agrees to pay amounts equal to any federal, state or local
sales, use, excise, privilege or other taxes or assessments, however
designated or levied, relating to any amounts payable by Client to MCCi
under this Agreement or any other Agreement between the Parties,
exclusive of taxes based on MCCi’s net income or net worth, and
understands and accepts that any pricing defined in an Order does not
include such taxes.
All recurring software maintenance support, subscriptions, and/or other
service packages (“Recurring Services”) will automatically renew and
be billed unless Client has terminated the Agreement per Section 4 below
or provided sixty (60) days written notice prior to the scheduled renewal
date of the Recurring Services. Once payment has been received, no
refunds for Recurring Services are available.
4. Term, Termination, and Cancellation
This Agreement will commence on the Effective Date and will be effective
for a one (1) year period and will renew automatically for one (1) year
periods and continue in full force and effect, unless terminated by either
Party as set forth below. Termination of this Agreement or any Order
hereunder may occur upon any of the following:
(a) Thirty (30) days after a Party’s receipt of written notice from the
other Party that this Agreement or the Services, in whole or in part
under an Order, shall be terminated; or
(b) Thirty (30) days after one Party notifies the other in writing that
they are in breach or default of this Agreement, unless the
negligent Party cures such breach or default within such thirty (30)
day period; or
(c) Fifteen (15) days after the filing of a petition in bankruptcy by or
against either Party, any insolvency of a Party, any appointment
of a receiver for such Party, or any assignment for the benefit of
such Party’s creditors (a “Bankruptcy Event”), unless such Party
cures such Bankruptcy Event within the fifteen (15) day period.
In all events, Client shall be liable for full payment for Services and
reimbursement of MCCi's expenses incurred through the effective date
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
MASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 2 of 7
of termination. If Client cancels or puts on hold an Order between
completed milestones, MCCi will invoice Client for a pro-rated share of
the uncompleted milestone(s) for Services performed through the date
of such termination or delay.
5. Working Arrangements
All Services shall be performed remotely, unless otherwise agreed to by
the Parties. If Services are to be performed on Client’s premises, Client
shall provide the following to MCCi Personnel: (i) a suitable and adequate
work environment, including space for work and equipment for
performance of the Services; (ii) access to and use of Client’s facilities
and relevant information, including all necessary software, hardware and
documentation; (iii) timely assistance in the acquisition of, or correction
of any hardware or software problems that would affect the performance
of Services; and (iv) any other items set forth in each Order.
Client will ensure that all Client’s personnel, vendors, and/or
subcontractors who may be necessary or appropriate for the successful
performance of the Services will, on reasonable notice: (i) be available
to assist MCCi Personnel by answering business, technical and
operational questions and providing requested documents, guidelines
and procedures in a timely manner; (ii) participate in the Services as
reasonably necessary for performance under an Order; and (iii) be
available to assist MCCi with any other activities or tasks required to
complete the Services in accordance with the Order.
6. MCCi Personnel
Neither MCCi nor its Personnel are or shall be deemed to be employees
of Client but rather as independent contractors. MCCi shall be responsible
for the compensation of its Personnel, in addition to any applicable
employment taxes, workmen's compensation and any other taxes,
insurance or provisions associated with the employment of such
personnel.
In addition, MCCi shall be responsible for all acts or omissions of its
Personnel. MCCi will also not discriminate in the referral or hiring of MCCi
Personnel on the bases of race, religion, sexual orientation, color, sex,
age, national origin, disability that does not affect the ability for an
individual to perform his or her job, or other protected categories as
required by state, federal, and local laws.
MCCi may utilize independent subcontractors in satisfying its obligations
under this Agreement (collectively with MCCi employees “Personnel”).
MCCi affirms to Client that these resources will adhere to and are subject
to the same representations made by MCCi throughout this Agreement.
Upon receipt of notice from Client that any MCCi Personnel is not suitable,
MCCi shall remove such person from the performance of Services and
will provide a qualified replacement as quickly as possible.
Unless a particular MCCi Personnel member has been identified as a key
resource to the relevant Order, MCCi at its sole discretion may reassign,
if and as necessary, other appropriately qualified MCCi Personnel to the
relevant Order as long as such assignment will not affect MCCi’s fee for
the Services defined or ability to satisfy its Deliverables.
Neither Party shall be deemed to be a legal representative of the other
nor has any authority, either express or implied, to bind or obligate the
other in any way.
MCCi agrees that all hiring by MCCi of persons performing this
Agreement shall be on the basis of merit and qualifications. MCCi will
have a policy to provide equal employment opportunity in accordance
with all applicable state and federal anti-discrimination laws, regulations,
and contracts. MCCi will not refuse employment to a person, bar a person
from employment, or discriminate against a
person in compensation or in a term, condition, or privilege of
employment because of race, color, religion, creed, political ideas, sex,
age, marital status, national origin, actual or perceived sexual
orientation, gender identity, physical or mental disability, except when
the reasonable demands of the position require an age, physical or
mental disability, marital status or sex distinction. MCCi shall be subject
to and comply with Title VI of the Civil Rights Act of 1964; Section 140,
Title 2, United States Code, and all regulations
promulgated thereunder.
MCCi represents it is, and for the term of this Agreement will be, in
compliance with the requirements of the Equal Pay Act of 1963 and
Section 39-3-104, MCA (the Montana Equal Pay Act). MCCi must report
to Client any violations of the Montana Equal Pay Act that MCCi has been
found guilty of within 60 days of such finding for violations
occurring during the term of this Agreement.
MCCi shall require these nondiscrimination terms of its subcontractors
providing services under this Agreement.
7. Confidential Information
The Parties acknowledge that in the course of MCCi providing Services
for Client hereunder, each may receive Confidential Information (as
defined below) of the other Party. Any and all Confidential Information
in any form or media obtained by a Recipient shall be held in confidence
and shall not be copied, reproduced, or disclosed to third parties for any
purpose whatsoever except as necessary in connection with the Services
provided under this Agreement. The Recipient further acknowledges that
it shall not use such Confidential Information for any purposes other than
in connection with the activities contemplated by this Agreement. All
consultants assigned by MCCi to Client will sign appropriate forms of
confidentiality agreements on or prior to their start date.
“Confidential Information” means any and all confidential
information of a Party disclosed to the other Party, including, but not
limited to, research, development, proprietary software, technical
information, techniques, know-how, trade secrets, processes, customers,
employees, consultants, pricing information and financial and business
information, plans and systems. Confidential Information shall not
include information which: (i) was known to the Party receiving the
information (the “Recipient”) prior to the time of disclosure by the other
Party (the “Disclosing Party”); (ii) at the time of disclosure is generally
available to the public or after disclosure becomes generally available to
the public through no breach of agreement or other wrongful act by the
Recipient; (iii) was lawfully received by Recipient from a third party
without any obligation of confidentiality; or (iv) is required to be disclosed
by law or order of a court of competent jurisdiction or regulatory
authority.
The obligations set forth in this Section shall survive termination of this
Agreement for a period of three (3) years thereafter.
8. Intellectual Property
Unless otherwise specified in any Order, title to all materials, products
and/or Deliverables, including, but not limited to, reports, designs,
programs, specifications, documentation, manuals, visual aids, and any
other materials developed and/or prepared for Client by MCCi under any
Order (whether or not such Order is completed) (“Works”), and all
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
MASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 3 of 7
interest therein shall vest in Client and shall be deemed to be a work
made for hire and made in the course of the Services rendered hereunder.
MCCi shall retain a non-exclusive, royalty-free, world-wide, perpetual
license to use, sell, modify, distribute and create derivative works based
upon any of the foregoing Works in its information technology
professional services business, provided that in so doing MCCi shall not
use or disclose any Client Confidential Information or Deliverables unique
to or owned by Client. To the extent that title to any such Works may
not, by operation of law, vest in Client or such Works may not be
considered works made for hire, all rights, title and interest therein are
hereby irrevocably assigned to Client. All such Works shall belong
exclusively to Client, except as set forth herein, with Client having the
right to obtain and to hold in its own name, copyrights, registrations or
such other protection as may be appropriate to the subject matter, and
any extensions and renewals thereof. MCCi agrees to give Client and any
person designated by Client, reasonable assistance, at Client's expense,
required to perfect the rights defined in this Section 8. Unless otherwise
requested by Client, upon the completion of the Services to be performed
under each Order or upon the earlier termination of such Order, MCCi
shall immediately turn over to Client all Works and Deliverables
developed pursuant to such Order, including, but not limited to, working
papers, narrative descriptions, reports and data.
Notwithstanding the foregoing, the following shall not constitute the
property of Client: (i) MCCi software, including but not limited to any
proprietary code (source and object), which is subject to third-party
license agreements with MCCi; (ii) those portions of the Deliverables
which include information in the public domain or which are generic ideas,
concepts, know-how and techniques within the computer design, support
and consulting business generally; and (iii) those portions of the
Deliverables which contain the computer consulting knowledge,
techniques, tools, routines and sub-routines, utilities, know-how,
methodologies and information which MCCi had prior to or acquired
during the performance of its Services for Client and which do not contain
any Confidential Information (as hereinafter defined) of Client conveyed
to MCCi. To the extent that any portion of the Deliverables includes
information or material that falls within the exceptions to property of
Client described in Subsection (iii) above, MCCi shall be deemed to have
granted Client a paid up, world-wide, non-exclusive license to use any
such information or material imbedded in the Deliverables for its internal
business needs and a non-exclusive license to make copies thereof for
use only in its and its affiliates’ facilities, subject to third party license
agreements, if any. Should MCCi, in performing any Services hereunder,
use any computer program, code or other materials developed by it
independently of the Services provided hereunder (“Pre-existing
Work”), MCCi shall retain any and all rights in such Pre-existing Work.
MCCi hereby grants Client a paid up, world-wide, non-exclusive license
to use and reproduce the Pre-existing Work for its internal business
needs.
Client understands and agrees that MCCi may perform similar services
for third Parties using the same personnel that MCCi may use for
rendering Services for Client hereunder, subject to MCCi’s obligations
respecting Client’s Confidential Information pursuant to Section 8.
9. Data Privacy
In the event that MCCi, in the course of providing Services to Client,
receives, stores, maintains, processes or otherwise has access to
“Personal Information” (as defined by the State Data Protection Laws
and/or European Union Directives, and including, but not limited to, an
individual’s name and social security number, driver’s license number or
financial number) then MCCi shall safeguard this information in
accordance with these laws. MCCi may disclose Personal Information for
business purposes only on a need-to-know basis and only with (i) MCCi
Personnel, (ii) any third party service providers that has agreed to
safeguard Personal Data in a like manner as MCCi safeguards such
information, and (iii) with other entities authorized to have access to
such information under applicable law or regulation. MCCi may disclose
Personal Data when necessary to protect its rights and property, to
enforce its terms of use and legal agreements, as required or permitted
by law, or at the request of law enforcement authorities and the courts,
and pursuant to a subpoena. MCCi shall have no duty to notify Client of
such compliance with law. MCCi takes reasonable and appropriate
measures to maintain the confidentiality and security of Personal Data
and to prevent its unauthorized use or disclosure. To the extent that
MCCi experiences a Security Breach as defined under the State Data
Protection Laws for information generated in connection with this
Agreement or any Order hereto, MCCi shall notify Client in writing within
five (5) business days of discovering such Security Breach.
MCCi represents that all Client data including Personal Information is
stored in the United States.
10. Warranty
(a) Services Warranty.
MCCi warrants that all Services shall be performed by personnel with
relevant skill sets and familiar with the subject matter for the Order in a
professional, competent and workman-like manner.
MCCi’s delivery of a Deliverable to Client shall constitute a representation
by MCCi that it has conducted a review of the Deliverable and believes it
meets the written specifications set forth in the corresponding Order.
Client shall then have the right to conduct any review of the Deliverable
as Client shall deem necessary or desirable. If Client, in its reasonable
discretion, determines that any submitted Deliverable does not meet the
agreed upon specifications, Client shall have five (5) business days after
MCCi’s submission to give written notice to MCCi specifying the
deficiencies in reasonable detail. MCCi shall use reasonable efforts to
promptly cure any such deficiencies. After completing any such cure,
MCCi shall resubmit the Deliverable for review as set forth above.
Notwithstanding the foregoing, if Client fails to reject any Deliverable
within five (5) business days, such Deliverable shall be deemed accepted.
MCCi does not warrant that the Services or Deliverables will be
uninterrupted or error-free, provided that MCCi shall remain obligated
pursuant to this Section 11. If the Services fail to conform to the
foregoing warranty in any material respect, Client’s initial remedy will be
for MCCi, at its expense, to promptly use commercially reasonable efforts
to cure or correct such failure. Upon failure of the foregoing, Client’s
remedies, and MCCi’s entire liability, as a result of such failure, shall be
subject to the limitations set forth in Section 12 below. The foregoing
warranty is expressly conditioned upon (i) Client providing MCCi with
prompt written notice of any claim thereunder prior to the expiration
thereof, which notice must identify with particularity the non-conformity;
(ii) Client’s full cooperation with MCCi in all reasonable respects relating
thereto, including, in the case of modified software, assisting MCCi to
locate and reproduce the non-conformity; and (iii) with respect to any
Deliverable, the absence of any alteration or other modification of such
Deliverable by any person or entity other than MCCi. The Parties
acknowledge and agree that this Agreement relates solely to the
performance of services (not the sale of goods) and, accordingly, will not
be governed by the Uniform Commercial Code of any State having
jurisdiction. MCCi also does not warrant any third-party products
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
MASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 4 of 7
procured on behalf of Client, and if there are any product warranties
provided by the manufacturer of the product, any remedy should be
requested directly from manufacturer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, MCCI DOES
NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY, WHETHER
SUCH REPRESENTATION OR WARRANTY BE EXPRESS OR IMPLIED,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, OR
FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION OR
WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE.
(b) General Warranty.
MCCi shall perform the Services in compliance with all applicable
international, federal and state laws and regulations and industry codes,
including but not limited to (i) federal and state anti-kickback laws and
regulations and laws governing payments to and relationships with
healthcare professionals, including 42 U.S.C. §1320a-7b(b); (ii) federal
Food and Drug Administration laws, regulations and guidance, including
the federal Food, Drug and Cosmetic Act and the Prescription Drug
Marketing Act, (iii) federal and state securities laws, meaning that MCCi
agrees that Client may be a publicly traded company and MCCi shall
instruct MCCi Personnel that federal and state securities laws prohibit the
purchase, sale, or pledge of Client stock while in possession of any
material, non-public information, (iv) the Foreign Corrupt Practices Act
of 1977, and the UK Bribery Act, the 1997 OECD Convention on
Combating Bribery of Foreign Public Officials in International Business
Transactions, and (v) international, federal and state privacy and data
protection laws, including, but not limited to, the relevant European
Union directives, Health Insurance Portability and Accountability Act of
1996 and the Health Information Technology for Economic and Clinical
Health Act, Chapter 93H of The Massachusetts General Laws and its
implementing regulations, 201 CMR 17.00, and Cal. Civ. Code §
1798.80-.84 (collectively, “State Data Protection Laws”).
11. Indemnification and Limitation of Liability
(a) MCCi Indemnification.
MCCi shall release defend, indemnify and hold Client harmless against
any and all claims, demands, actions, fees and costs (including attorney’s
fees and the costs and fees of expert witness and consultants), losses,
expenses, liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature
connected therewith and without limit and without regard to the cause
or causes thereof or the negligence of any party or parties that may be
asserted against, recovered from or suffered by Client occasioned by,
growing or arising out of or resulting from or in any way related to: (i)
the negligent, reckless, or intentional misconduct of any of MCCi or (ii)
any negligent, reckless, or intentional misconduct of any of the MCCi’s
agents. Further, MCCi shall release, defend, indemnify and hold harmless
Client for claims made or brought against Client by a third party alleging
that the use of any Deliverable as provided to Client under this
Agreement or any Order hereto and used in accordance with this
Agreement and relevant documentation, infringes any third party’s
intellectual property rights. Notwithstanding the foregoing, MCCi shall
not be required to indemnify Client to the extent the alleged infringement:
(x) is based on information or requirements furnished by Client, (y) is
the result of a modification made by a party other than MCCi, or (z) arises
from use of a Deliverable in combination with any other product or
service not provided by MCCi. If Client is enjoined from using the
Deliverable or MCCi reasonably believes that Client will be enjoined, MCCi
shall have the right, at its sole option, to obtain for Client the right to
continue use of the Deliverable or to replace or modify the Deliverable
so that it is no longer infringing. If neither of the foregoing options is
reasonably available to MCCi, then this Agreement may be terminated at
either Party’s option and MCCi’s sole liability shall be subject to the
limitation of liability provided in this Section.
(b) Client Indemnification.
If the Services require MCCi to access or use any third party products
provided or used by Client, Client warrants that it shall have all rights
and licenses of third Parties necessary or appropriate for MCCi to access
or use such third party products and agrees to produce evidence of such
rights and licenses upon the reasonable request of MCCi and to
indemnify, hold harmless and defend MCCi from and against any Claims
to the extent arising from MCCi’s access to or use of such third party
products.
(c) Indemnification Procedure.
Each indemnified Party shall give the indemnifying Party (a) prompt
written notice of the Claim; (b) sole control of the defense and settlement
of the Claim (provided that the indemnifying Party may not settle any
Claim unless it unconditionally releases the indemnified Party of all
liability); and (c) at indemnifying Party's cost, all reasonable assistance.
(d) Limitation of Liability.
In no event shall either Party be liable for special, exemplary, incidental,
or consequential damages (including, without limitation, lost revenues,
profits, savings or business) or, whether or not the possibility of such
damages has been disclosed to such Party in advance or could have been
reasonably foreseen by such Party, and whether in an action based on
contract, warranty, strict liability, tort (including, without limitation,
negligence) or otherwise. Except for a Party’s indemnification obligations,
each Party's maximum aggregate liability for all claims, losses or other
liability arising out of, or connected with, this Agreement, the Services
contemplated hereunder or Client’s use of any such Services or
Deliverables, and whether based upon contract, warranty, strict liability,
tort (including, without limitation, negligence), or otherwise, shall in no
case exceed$500,000.00. Each Party's entire liability and Client's
remedies under this Agreement shall be subject to the limitations
contained in this Section 11. The limitations on warranty and liability
specified in Sections 10 and 11 hereof will survive and apply even if any
limited remedy herein is found to have failed of its essential purpose.
12. Insurance
During the term of this Agreement, MCCi shall carry, at its sole expense,
insurance coverage to include at a minimum the following:
• Workers Compensation: State statutory limits and $1,000,000
employers’ liability
• Comprehensive General Liability: $2,000,000 per occurrence and
$4,000,000 in the aggregate
• Professional Liability: $1,000,000 per occurrence and $3,000,000
in the aggregate
• Errors and Omissions: $1,000,000 per occurrence
• Cyber and Technical Errors and Omissions: $3,000,000 in the
aggregate
13. Notices
All notices, demands and other communications required or permitted
hereunder or in connection herewith shall be in writing and shall be
deemed to have been duly given if delivered (including by receipt verified
electronic transmission) or mailed in the Continental United States by
first class mail, postage prepaid, to a Party at the following address, or
to such other address as such Party may hereafter specify by notice:
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
MASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 5 of 7
If to MCCi If to Client:
MCCi, LLC Bozeman
3717 Apalachee Parkway, Suite 201 121 N. Rouse Avenue
Tallahassee, FL 32311 Bozeman, MT 59715
Attn: Legal Department
Email: legal@mccinnovations.com
Attn: Scott McMahan
14. Miscellaneous
(a) 3rd Party EULA Provisions.
Client acknowledges that they are responsible for adhering to any 3rd
party End User License Agreements (“EULA”), for any products procured
on behalf of Client by MCCi.
(b) Use of Open Source Code.
Except as disclosed in the Order, MCCi does not distribute nor otherwise
use any open source or similar software in a manner that would obligate
MCCi to disclose, license, make available or distribute any of its material
proprietary source code as a condition of such use. For purposes of this
Agreement, “Open Source” shall mean any software or other
Intellectual Property that is distributed or made available as “open source
software” or “free software” or is otherwise publicly distributed or made
generally available in source code or equivalent form under terms that
permit modification and redistribution of such software or Intellectual
Property. Open Source Materials includes software that is licensed under
the GNU General Public License, GNU Lesser General Public License,
Mozilla License, Common Public License, Apache License or BSD License,
as well as all other similar “public” licenses.
(c) Client Software Customizations.
Client may choose to customize their software internally without MCCi’s
help. MCCi is not responsible for any damages caused by Client’s
customization of the software. MCCi will not be held responsible for
correcting any problems that may occur from these customizations.
(d) MCCi Software Configuration Services.
Client may elect to contract with MCCi to configure Client’s software. In
these situations, Client acknowledges they are responsible for testing all
software configurations and as such, waives any and all liability to MCCi
for any damages that could be related to these software configurations.
(e) Force Majeure.
If either of the Parties hereto are delayed or prevented from fulfilling any
of its obligations under this Agreement by force majeure, said Parties
shall not be liable under this Agreement for said delay or failure. “Force
Majeure” means any cause beyond the reasonable control of a Party
including, but not limited to, an act of God, an act or omission of civil or
military authorities of a state or nation, epidemic, pandemic, fire, strike,
flood, riot, war, delay of transportation, or inability due to the
aforementioned causes to obtain necessary labor, materials or facilities.
(f) Audit Rights.
With reasonable notice and at a convenient location, Client will have the
right to audit MCCi’s records to verify MCCi’s records to confirm MCCi’s
billing to Client is correct.
In addition, should any of Client’s regulators legally require access to
audit the Services, MCCi will, to the extent legally required by such
regulators, provide access for the same. All results of such audits shall
be MCCi Confidential Information.
(g) Assignment.
Neither Party may assign or otherwise transfer any of its rights, duties
or obligations under this Agreement without the prior written consent
of the other Party. Either Party, however, without any requirement for
prior consent by the other, may assign this Agreement and its rights
hereunder to any Party or entity who succeeds (by purchase, merger,
operation of law or otherwise) to all or substantially all of the capital
stock, assets or business of such Party, if the succeeding party or entity
agrees in writing to assume and be bound by all of the obligations of
such Party under this Agreement. This Agreement shall be binding upon
and accrue to the benefit of the Parties hereto and their respective
successors and permitted assignees.
(h) Modification.
This Agreement may be modified only by a written amendment executed
by duly authorized officers or representatives of both Parties.
(i) Provisions Severable.
If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, then such provision shall
be severed from this Agreement and the remaining provisions will
continue in full force.
(j) Dispute Resolution.
Should a dispute arise between MCCi and Client involving their respective
responsibilities, limitations or the working relations between the Parties
under this Agreement or any Order, then the Parties will make every
effort to amicably resolve the dispute. The Parties agree that any dispute
will initially be referred to their senior management for resolution within
fifteen (15) business days of receipt of notice specifying and asking for
the intervention of the Parties’ superiors. If the dispute is still unresolved
after such fifteen (15) business day period, then such dispute may only
be resolved in a court of law of competent jurisdiction in compliance with
the Applicable Law provisions of this Agreement.
(k) Interpretation.
The descriptive headings of this Agreement and of any Order under this
Agreement are for convenience only and shall not affect the construction
or interpretation of this Agreement. As used herein, “include” and its
derivatives (including, “e.g.”) shall be deemed to mean “including but
not limited to.” Each Party acknowledges that this Agreement has been
the subject of active and complete negotiations, and that this Agreement
should not be construed in favor of or against any Party by reason of the
extent to which any Party or its professional advisers participated in the
preparation of this Agreement.
(l) Publicity.
MCCi may use the name of Client, the existence of this Agreement and
the nature of the associated services provided herein for marketing
purposes, except that such use shall not include any Client Confidential
Information as defined in Section 7 of this Agreement.
(m) Applicable Law
This Agreement in all respects is governed by the Laws of the State of
Montana.
(n) Entire Agreement.
This Agreement and all Order(s) attached hereto constitute the complete
and exclusive statement of the agreement between the Parties and
supersedes all proposals, oral or written, and all other prior or
contemporaneous communications between the Parties relating to the
subject matter herein.
(o) Counterparts.
This Agreement may be executed in several counterparts, each of which
will be deemed an original, and all of which taken together will constitute
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
MASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 6 of 7
one single agreement between the Parties with the same effect as if all
the signatures were upon the same instrument.
(Remainder of Page Intentionally Left Blank; Signature Page Follows)
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
MASTER SERVICES AGREEMENT NO. 60994
Last updated: June 25, 2020 Page 7 of 7
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized representatives as of the
Effective Date.
MCCi, LLC BOZEMAN (“Client”)
Signed: __________________________ Signed: __________________________ _
Name: ___________________________ Name: _Jeff Mihelich ___________
Title: ____________________________ Title: ___City Manager________________
Date: ____________________________ Date: _____________________________
121 N. ROUSE AVENUE
BOZEMAN, MT 59715
DocuSign Envelope ID: AF31C1B9-A4FE-4118-943F-AAF8E64940F7
10/29/2020
Donny Barstow
President & CEO
10/30/2020