blueRock Services Agreement

This Master Services Agreement is entered into by Blue Rock Technologies, LLC (hereinafter referred to as “blueRock”, “BlueRock,” or “Contractor”), a Michigan limited liability company with a principal place of business at 560 Kirts Boulevard, Suite 122, Troy, MI 48084, and <Insert Client Name> (“Client”), with a principal place of business of <Insert Client Address>.

  1. Term:  This Agreement shall continue and be effective unless either Party has given the other Party written notice of termination. Notwithstanding such notice, this Agreement shall continue in full force until the completion of any services and deliverables specified in a then-effective Statement of Work (along with a Scope of Work, a “SOW”).
  1. Scope of Work: blueRock agrees to provide its Services/Deliverables to Client in accordance with the professional industry standard of care and the requirements of Client as mutually agreed to in writing by the parties in the applicable original SOW.  In the event Client’s requirements change during the course of blueRock engagement resulting in an increase or decrease in the scope of work as agreed to by the parties or should Client provide blueRock the wrong specifications, directions or misinformation concerning its operating environment, or otherwise fail to perform is obligations under this Agreement resulting in the delay of blueRock Services/Deliverables, then blueRock  fees shall be adjusted as agreed to by both parties in a written SOW and paid by Client.  Except as expressly set forth in this Agreement, blueRock makes no other warranties, express or implied or whether arising by operation of law or otherwise, including without limitation, implied warranties of merchantability and fitness for a particular purpose.
  1. Schedule:  blueRock shall provide its Services/Deliverables in accordance with the timeframe of the project schedule as mutually agreed to by the parties in writing provided, however, in the event that Client delays the project schedule as agreed to by the parties in writing, Client must provide blueRock with written notice of such delay at least fifteen (15) business days prior to the originally scheduled date of the provision of blueRock  Services/Deliverables, otherwise Client shall be liable for the total amount of any expense or cost incurred by blueRock  as a result of the delay, less any amount resulting from blueRock  ability to mitigate its damages.
  1. Confidentiality:  blueRock and Client’s proprietary software tools, methodologies, techniques, ideas, discoveries, inventions, trade secrets, intellectual property, customer lists and any other oral or written information that the parties identify as confidential at the time of disclosure or that a reasonable person would understand to be of a confidential nature is deemed to be Confidential Information.  Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party’s prior written consent.  Each party agrees to take reasonable measures to protect the confidentiality of the other party’s Confidential Information and to advise their employees of the confidential nature of the Confidential Information.  Notwithstanding anything to the contrary contained in this Agreement, neither party shall be obligated to treat as confidential any information disclosed by the other party (the  “Disclosing Party”) which:  (1) is lawfully known to a recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to a recipient or third party without restriction; (3) is independently developed by a recipient without any reliance on Confidential Information; (4) is or later becomes publicly available without violation of this Agreement by a recipient; or (5) is required by law to be disclosed by a recipient provided that the Disclosing Party is afforded prompt written notice in order to seek a protective order prior to disclosure by the Recipient.  Recipient of software acknowledges that the software and related materials are confidential and not otherwise available for disclosure or publication. Accordingly, Recipient agrees to maintain the confidentiality of the software. Recipient will provide the Software only to those of its employees who will use it in the regular course of their daily activities, and that such employees also shall agree to respect the fiduciary and confidential relationship established hereby. A recipient agrees that it will not provide a copy of this software to any entity not party to this Agreement without the prior written consent of blueRock.The provisions of this Section shall survive the termination or expiration of this Agreement and continue for so long as any of the information disclosed remains confidential, and in any case for a period of five (5) years after expiration of this Agreement.
  1. Payment/TaxesClient shall pay blueRock’s invoices for Services/Deliverables rendered and any expenses or costs incurred by blueRock in performance of this Agreement, in accordance with the SOW to which the invoices are applicable.  In the event of any disputed amount, Client shall provide written notice of the disputed amount to blueRock within thirty (30) days of Client’s receipt of the invoice and the parties will thereafter make good faith efforts to promptly resolve any issues pertaining to the disputed amount.   Should the parties fail to resolve payment for any disputed amount, then blueRock shall have the right to terminate the performance of its Services/Deliverables immediately and blueRock shall not be liable to Client as a result of its termination.  blueRock shall charge interest on any overdue amount at a rate equal to the maximum amount allowed by law.  Furthermore, should Client fail to pay any amount due to blueRock in accordance hereunder, Client, subject to Section 13, shall pay all attorneys’ fees, costs and expenses incurred by blueRock in any collection action to recover such amounts.  Client shall pay any taxes for which it is legally liable arising from blueRock ’s provision of Services/Deliverables hereunder.
  1. Limitation of Liability:  In no event, including an event of termination, will either party or their respective parents, subsidiaries, shareholders, officers, directors, employees, representatives, assigns or insurers be liable to the other party or to any third party for any indirect, incidental, exemplary, special, punitive, or consequential damages, including without limitation, damages for lost profits, regardless of the form of action, whether in contract, tort or otherwise and even if such party has been advised of the possibility of such damages.  Except for any amounts owed to blueRock by Client under this Agreement or applicable Statement of Work, each party’s and their respective parents, subsidiaries, shareholders, officers, directors, employees, representatives, assigns and insurers’ liability to the other party, whether in contract, tort or otherwise for all damages arising out of or relating to this Agreement will be limited to the amounts received by blueRock  from Client for the Services/Deliverables rendered under the applicable SOW.  The parties’ obligations contained in this Section shall survive the termination or expiration of this Agreement.
  1. Indemnification: Each party will indemnify, hold harmless and defend the other party from any and all claims, obligations, expenses, liabilities, losses, and damages of any kind or description (including, without limitation, any legal, accounting, or other expense) relating to or arising out of actions taken by either party in relation to this engagement, a third party action unrelated to this engagement, or as a result of the implementation of the actions taken or recommendations approved resulting from this Engagement, including any related legal proceeding in which either party hereto is not a party to such proceeding. This includes, but is not limited to: a) the breach of any representation, warranty or covenant of a party or its members made to the other party in or in connection with this Agreement; b) the breach of any representation, warranty or covenant of a party or its members and/or officers contained in or made in connection with any other instrument prepared by reason of this Agreement; c) a misrepresentation contained in any oral or written statement made or provided by a party or its members and/or officers in connection with any transaction contemplated by this Agreement; or d) any subpoena, interrogatory, court order, mediation or arbitration request involving a party hereto and a third party which requires the party hereto to appear or produce documentation. Notwithstanding the above, the indemnification and hold harmless provisions of this section shall not apply to those actions taken, or actions not taken, by either party due to willful misconduct or from gross negligence.
  1. Warranties:  blueRock represents and warrants that it has the personnel, experience and skill to provide the Services/Deliverables in a professional and timely manner, and will perform the Services/Deliverables consistent with the applicable standards in the industry. In case of breach of this warranty or any other legal duty to the Client, blueRock’s exclusive liability, and Client’s exclusive remedy will be to obtain (i) the cured performance of the Service or revision of the deliverable; or (ii) if blueRock determines that such remedies are not practicable, a refund of the project fees allocable to such defective Services/Deliverables blueRock will conform to the specifications contemplated under the MSA or any SOW hereunder and blueRock will not infringe any patent, copyright, trade secret or other proprietary right of any third person.
  1. TerminationEither party may terminate this Agreement:  (a) if the other party commits a material breach of its obligations hereunder, which breach is not cured within twenty (20) days after receipt of written notice from the non-breaching party specifying the basis of such breach; (b) immediately by written notice to the other party if the other party: (i) becomes subject to an involuntary/voluntary petition in bankruptcy; (ii) declares or admits that it is insolvent or is unable to meet its debts as they mature; or (iii) makes an assignment for the benefits of all or substantially all of its creditors; or (c) immediately if Client fails to make payment to blueRock  in accordance with Section 5 of this Agreement.  Either party may terminate this entire Agreement, or any individual SOW under this Agreement, for convenience, upon providing the other party with thirty (30) days prior written notice.  In the event of termination, Client shall be responsible for all fees and expenses incurred through the date on which termination is effective, as well as the remaining value of any effective SOW, unless the termination was due to blueRock’s uncured default. For Managed Services contracts with a Termination by Client, blueRock will provide transition assistance upon mutually agreed upon terms.
  1. Liquidated Damages: For Managed Services contracts, a Termination by Client upon the occurrence of an event listed in Paragraph 9, shall require Client to pay compensation to blueRock in an amount equal to two (2) months of contract billings as liquidated damages (“Liquidated Damages”). The parties intend that the Liquidated Damages constitute compensation for damages and not a penalty. The parties acknowledge and agree that the harm caused by a Client breach would be difficult to accurately estimate at the time of contracting, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that may result from a Client Breach. The Liquidated Damages represent a transitionary two (2) month cost where blueRock will provide transitional services and assistance to Client or Client designated new provider.
  1. Intellectual Property:  Upon payment in full of all amounts owed to blueRock by Client under any invoice, Client will own all intellectual property in the Services/Deliverables prepared for Client and delivered under this Agreement or the applicable Statement of Work, provided, however, that blueRock will retain sole ownership of any Intellectual Property in the Services/Deliverables that existed prior to the provision of Services/Deliverables rendered by blueRock during the performance of this Agreement with Client without use of any Client Confidential Information or otherwise restricted information hereunder.  blueRock grants Client a non-exclusive, non-transferable license to use any Intellectual Property that blueRock owns for Client’s internal use within the scope of this Agreement.  The Client agrees to indemnify, defend and hold harmless blueRock and its subsidiaries, shareholders, officers, directors, employees, representatives, assigns, and insurers from and against any claim, loss, damage or expense incurred by blueRock as a result of Client’s unauthorized use of the license outside the scope of this Agreement.
  1. Independent ContractorIn providing the Services/Deliverables for Client hereunder, blueRock is an independent contractor and nothing in this Agreement shall be deemed to create a partnership, joint venture or similar relationship between the parties.
  1. Governing LawThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan without regard to such state’s choice of law principles.  Any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration. Notwithstanding the foregoing, either party shall have the right to seek an injunction and all available equitable relief and/or specific relief from any competent state or federal Court within the state of Michigan for any alleged or actual violations with regard to claims for intellectual property Infringement, confidentiality, and non-solicitation.  If either party breaches any term of this Agreement, the other party may engage legal counsel to protect its rights hereunder, and in the event of such engagement of legal counsel following any such breach, the non-breaching party shall be entitled to recover from the other party reasonable costs, expenses and attorney fees incurred in connection with such engagement.
  1. Notice:  Any notice, request, demand, report or other communication served personally shall be deemed delivered upon receipt, if served by mail or independent courier shall be deemed delivered on the date of receipt as shown by the addressee’s registered or certified mail receipt, and if served by email or facsimile transmission shall be deemed delivered on the date of receipt as shown on the received email or facsimile (provided the original is thereafter delivered as aforesaid).
  1. Non-Solicitation: During the course of blueRock’s performance for Client under this Agreement or applicable Statement of Work for a period of one (1) year thereafter, each party agrees not to hire as an employee, independent contractor, consultant, or otherwise utilize in any other capacity, the services of the other party’s employees or contractors, unless such party first obtains the written consent of the other party.  In the event an employee, independent contractor, consultant or other resource of blueRock who performed under this Agreement or applicable Statement of Work is retained by Client, then Client shall pay to blueRock  a referral fee in the amount of twenty-five (25) percent of the employee’s most current year’s annualized blueRock salary, maximum bonus and benefit costs, within thirty (30) days of the employee’s date of hire by Client.
  1. Force MajeureIf the performance of either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, act of terrorism, or any other causes beyond the control of either party, that part of the party’s performance which is prevented, hindered, delayed or made impracticable shall be excused and not regarded as an event of default under this Agreement.
  1. Assignments; Outsourcing Transfers of Software:  This Agreement will be binding upon the parties and their respective successors and assigns.  Notwithstanding the foregoing, neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, which consent may be withheld in the other party’s sole discretion.  In the event of permissible assignment, the assignor shall remain jointly and severally liable with the assignee during the term of this Agreement.Assignment and transfer of software licensing is only valid in accordance with consents required in blueRock’s original software licensing agreements and so long as it does not conflict with any other terms of such agreements including the payment of licensing fees. When blueRock’s original software licensing permits outsourcing the operation, support and maintenance of its network, it may transfer the software licenses to the Outsourcer without consent of the licensor and payment of a new license fee. Assignment and transfer of software licensing may only occur when Client is not in breach of any provisions herein.
  1. Proprietary Rights:For Project Services. “Project Services” is defined as specific work, delivered under a pre-defined SOW. As used in this Agreement, the term “Materials” means (i) all deliverables, and (ii) all data, information, materials, documentation, software, works of authorship, templates, marks, ideas, discoveries, inventions, systems, methods, processes and items that are developed or conceived by either party, or that are disclosed or provided to Client, in connection with this Agreement or SOW. Client shall retain sole ownership of all Materials, and the Materials shall be considered work made for hire and made in the course of the services rendered hereunder.  To the extent that any Materials may not be considered a work made for hire, all right, title and interest herein is hereby irrevocably assigned to Client.  All Materials shall belong exclusively to Client with Client having the right to obtain and hold in its own name copyrights, patents, applications, registrations or such other protection as may be appropriate to the subject matter, and to any extensions and renewals thereof.  Notwithstanding the foregoing, blueRock shall own all intellectual property rights in any work product that existed prior to blueRock’s performance of services under this Agreement.
  1. For Managed and Hosting Services. blueRock owns all right, title and interest (including copyright and other proprietary or intellectual property rights) in blueRock facilities and blueRock internet sites. blueRock retains the systems, process, tools, methodologies that it uses to provide services to Client. All Client data is accessible to Client 24 hours a day and 7 days a week. blueRock’s standard operating procedures are proprietary to blueRock.  The parties hereto agree that the violation of this provision by Client shall result in substantial and irreparable damage to blueRock for which damage a remedy at law shall not be adequate and blueRock shall be entitled to injunctive relief, both mandatory and restraining, in addition to any other rights and remedies of blueRock under this Agreement and at law or in equity.
  1. Work Statement Changes; SLA Changes:For Project Services. Any changes to a SOW issued hereunder must be in writing. No verbal modifications between persons involved in a project will be binding on either Client or blueRock.  Changes representing a departure from the original scope of the project will be incorporated as a modification to the original SOW or will become the basis of a new, replacement SOW.For Managed and Hosting Services. No changes or modifications to the software licensing agreement shall be made unless it is in writing and signed by each party to this Agreement. No verbal modifications between persons involved in a project will be binding on either Client or blueRock.
  1. Survival of Rights and ObligationsThe rights and obligations of this Agreement shall inure to and be binding upon the parties hereto, their legal representatives, successors, heirs, and assignees.  The rights, and obligations of the parties hereunder which by their nature are intended to continue beyond the expiration or termination of this Agreement (including but not limited to indemnification and confidentiality obligations), shall survive and continue after any such expiration or termination.
  1. Subcontracting: blueRock may from time to time use different subcontractors in the performance of its obligations hereunder. blueRock shall ensure that all subcontractors are bound by and comply with Section 4 (Confidentiality), Section 18 (Proprietary Rights), and with any other provisions of this Agreement that may be applicable to the services performed or the items or materials provided by such subcontractors, to the same extent as blueRock. blueRock shall be responsible and liable for the acts and omissions of any subcontractor as if such acts or omissions were those of blueRock.  blueRock is solely responsible for the compensation of its subcontractors and Client shall have no liability for any such compensation.  blueRock shall be fully responsible for the acts and omissions of its subcontractors.
  1. Waiver; ModificationNo term or provision hereof shall be deemed waived and no breach excused, unless such waiver and consent shall be in writing and signed by the party sought to be charged with such waiver or consent.  Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent, waiver, or excuse for any other different or subsequent breach of this Agreement; Any amendment or other modification of this Agreement will not be effective unless in writing and signed by the party against whom enforcement is sought.
  1. NoticesExcept as otherwise specifically provided herein, all notices, requests, consents, demands and other communications required or permitted hereunder shall be in writing, shall be effective upon receipt and shall be delivered by hand with receipt; emailed; or posted by certified or registered mail, return receipt requested, to the respective parties to this Agreement to the addresses listed in the introductory paragraph to this Agreement.
  1. AuthorityEach party represents that it has the full power and authority to enter into and perform this Agreement, and each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by it.
  1. Section HeadingsThe headings of the several Sections are inserted for convenience or reference only and are not intended to be part of or affect the meaning or interpretation of this Agreement.
  1. CounterpartsThis Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. A PDF, facsimile or other electronic copy of a signature this Agreement shall be effective as if an original.
  1. Severability: The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity, legality or enforceability of any other provision.
  1. Entire AgreementThis Agreement and the documents incorporated by reference into this Agreement, contain the final, complete and exclusive understanding of, and supersede all prior or contemporaneous, oral or written, agreements, understandings, representations and negotiations between, the parties relating to the subject matter of this Agreement.  The parties further agree that this Agreement may not be explained or supplemented by a prior or existing course of dealings between the parties, by any usage of trade or custom, or by any prior performance between the parties pursuant to this Agreement or otherwise. In the event of conflict between the Agreement and a Statement of Work,