This Agreement (the “Agreement” or “Master Services Agreement”) states the terms and conditions that govern the contractual agreement between Spherical LLC having their principal place of business at 233 S. Wacker Dr. STE 4400 Chicago, IL 60606 (“Spherical”, “We”, “Us”, “Our”), and the client represented by the Signatory (the “Client”, “You” “Your” “Yours”) who agrees to be bound by this Agreement.
WHEREAS: The Client wishes to engage Spherical to provide consulting, software development, and/or professional services (the “Services”) and Spherical is willing to provide such consulting, software development, and/or professional services, solely upon the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants, agreements, and promises made by the parties hereto, the receipt and sufficiency of which is hereby acknowledged, Spherical and the Client (individually, each a “Party” and collectively, the “Parties”) covenant and agree as follows:
The Client signatory hereby represents and warrants to Spherical it is duly authorized and empowered to execute, deliver and perform this Agreement either on behalf of their company or themselves and that such action does not conflict with or violate any provision of law, regulation, policy, contract, deed of trust or other instrument to which it is a party or by which it is bound and that this Agreement constitutes a valid and binding obligation of it enforceable in accordance with its terms.
This Agreement shall become effective on the date hereof and shall be in force until it is terminated pursuant to provision 10 of this agreement (the “Term”).
Spherical shall provide the Services, to be defined in one or more Statements of Work (“SOW”, “Statement of Work”, “Scope of Work”, “Scope”, “Proposal”), to the Client.
Spherical shall perform the Services in a prompt manner and have the final product or service (“Deliverable”) ready for the Client no later than the due date specified in the SOW (the “Completion Date”). This date is subject to change in accordance with the Change Order process defined in the SOW.
There may be some additional “components” associated with this project’s Objectives. These will be referenced in the “Associated Components” section of the SOW (the “Associated Components”). “Components” typically refer to or include software licenses, cloud hosting, content delivery infrastructure, etc. Spherical shall provide the Associated Components as described in the Proposal.
There may be some additional “services” associated with this project’s Objectives. These will be referenced in the “Associated Services” section of the SOW (the “Associated Services”). “Services” typically refer to o†r include recurring work provided by Spherical that requires human efforts such as ongoing technical support, server maintenance, recurring check in calls, etc. Spherical shall provide the Associated Services as described in the Proposal.
The Final Product of each Objective (the “Final Product”) shall be delivered to the Client in accordance with the manner described in the deliverables section of the applicable SOW. The Client's signature, which shall not be unreasonably withheld provided acceptable performance, will be required to confirm acceptance of the Final Product (the “Final Sign-off”). The Final Sign-off will be required before delivery of the Final Product The date on which the Final Sign-off is executed shall hereon be referred to as the Final Delivery Date (the “Final Delivery Date”)
Client may pay via credit card for any balance less than $265. Spherical reserves the right to require payment via wire transfer or ACH for any amount surpassing that.
In consideration for the Services outlined in the Statements of Work, the Client shall pay to Spherical thirty (30) percent of the One-off Costs as outlined in the SOW for each Objective prior to commencement of work on that Objective. The remaining seventy (70) percent shall be invoiced upon the Final Delivery Date.
Spherical shall accurately invoice the Client at the start of each Objective and upon Final Delivery Dates, or once per month at Spherical’s sole discretion. Invoices shall be due and payable in full within ten (10) days of the Client’s receipt of the invoice for acceptable performance.
In consideration for the Associated Components and Associate Services outlined in the Statements of Work, the Client shall pay to Spherical the full amount of the Recurring Costs on a recurring basis as outlined in the Statements of Work.
Spherical uses third-party payment processors (the “Payment Processors”) to bill Client through the payment account(s) linked to Client’s Account (Client’s “Billing Information”). The processing of payments may be subject to the terms, conditions, and policies of the Payment Processors in addition to this Agreement. Spherical is not responsible for acts or omissions of the Payment Processors. Client agrees to pay Spherical, all sums for recurring costs as defined in the SOW, through the Payment Processors or as otherwise collectively agreed to. Client hereby authorizes Spherical and applicable Payment Processors to charge all such sums (including all applicable taxes) to the payment method(s) specified in or linked to Client's Account (Client's “Payment Method”).
Client must provide current, complete, and accurate information for their Account and Billing Information, and must promptly update all such information in the event of changes (such as a change in billing address, credit card number, or credit card expiration date). Client must promptly notify Spherical or Our Payment Processors if Client's payment method is canceled (e.g., for loss or theft) or otherwise inoperable.
By entering into this Agreement, Client agrees to be billed on a recurring basis and to be automatically charged by the Spherical or Our Payment Processors using Client's Payment Methods upon invoicing. If Client's Payment Method or payment of fees is subject to other terms and conditions, as set forth in order forms, invoices or otherwise, then those other terms and conditions apply in addition to this Agreement. Client may also be billed an amount up to Client's current balance at any time to verify the accuracy of Client's account information. Spherical reserves the right to deactivate, terminate, prevent access to, disable services for, and/or delete any Accounts or access to the Websites and Services at any time at Our sole discretion, including for nonpayment, late payment, or failure to charge Client’s Payment Methods upon invoicing.
Client is responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest, and back-payments relating to payments, including but not limited to national, state, or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively, “Taxes”). Unless otherwise stated, Spherical’s pricing policies do not include and are not discounted or enhanced for any such Taxes. If Spherical becomes obligated to collect or pay Taxes in connection with Client's purchase of the Services, those Taxes will be invoiced to Client as part of a billing process or collected at the time of purchase. In certain states, countries and territories, Spherical may determine if the Client's purchase of Services is subject to certain Taxes, and if so, may collect such Taxes and remit them to the appropriate taxing authority. If Client believes that a given Tax does not apply or that some amount must be withheld from payments to Us, Client must promptly provide Us with a tax certificate, withholding receipt, tax identifier (e.g., VAT ID) or other adequate proof, provided such information is valid and sufficiently authorized by all appropriate taxing authorities. The Client must also provide Us with any tax identification information that is necessary for Us to comply with Our tax obligations, as We determine from time to time. Client will be solely responsible for any misrepresentations made or non-compliance caused by Client regarding Taxes, whether regarding Us or other parties, including any penalties, fines, audits, interest, back-payments, or further taxes associated with such misrepresentations or non-compliance.
All payments hereunder shall be made in U.S. Dollars in accordance with instructions provided by Spherical.
For a period of one hundred and eighty (180) days after the Final Delivery Date, the Final Product shall operate according to the Specifications. If the Final Product malfunctions or in any way does not operate according to the Specifications within that time, then Spherical shall take any reasonably necessary steps to resolve the issue and ensure the Final Product’s operate according to the Specifications as originally agreed. This warranty period may be expanded upon through the Associated Services provision.
For a period of thirty (30) days after Final Delivery Date, Spherical shall provide the Client with answers to any questions or assist in solving any problems regarding the Final Product up to two (2) hours free of charge and any additional support thereafter may be provided and billed to the Client through the exchange and acceptance of a separate Proposal. Spherical agrees to respond to any reasonable request for assistance made by the Client regarding the Software within forty-eight (48) business operating hours of the request. This support period may be expanded upon through the Associated Services provision.
Client acknowledges that Spherical will require ongoing communication with the Client to provide Services and may require the Client to perform actions or provide information including but not limited to signing third-party terms and agreements, providing company credit card information, providing admin login information, etc.… Client further acknowledges that failure or delay in providing the requested information or completing the necessary action may result in delays such that Objectives are not completed in alignment with the timeline as outlined in the Statement of Work.
Each Party shall receive in confidence (“Receiving Party”) from the other Party (“Disclosing Party”) and treat as confidential all technical information, business/financial information, management information, and documentation which (i) is stamped or otherwise marked as being confidential or proprietary, whether in written or electronic form, (ii) pertains in any way to such Party’s (or its affiliates’) business plans or methods, or (iii) otherwise is not generally known by others, and under the circumstances of the disclosure, the Disclosing Party had a reasonable expectation that the Receiving Party would know that the information is confidential or proprietary (collectively, “Proprietary Information”). Information that is disclosed orally or visually to a Receiving Party shall also be deemed Proprietary Information if the Disclosing Party identifies such information as proprietary at the time of disclosure and, within thirty (30) days after such disclosure, reduces the subject of the disclosure to writing and submits it to the Receiving Party.
A Receiving Party shall hold Proprietary Information received from the Disclosing Party in confidence, shall use such information only for the purpose of and in accordance with this Agreement, and shall not further disclose such information to any third-party without the prior written approval of the original Disclosing Party. The obligation to protect the confidentiality of Proprietary Information shall extend for a period of three (3) years following a Party’s receipt of Proprietary Information.
The restrictions of this section shall not apply to any information: (i) lawfully received from another source free of restriction and without breach of this Agreement, (ii) that is published or becomes generally available to the public without breach of this Agreement, (iii) known by the Receiving Party prior to the time of disclosure, (iv) independently developed by the Receiving Party without resort or access to the Proprietary Information, or (v) that the Disclosing Party has approved for further release by the Receiving Party.
Proprietary Information shall remain the property of the Disclosing Party and shall be returned or destroyed upon written request or upon termination or expiration of this Agreement. The Receiving Party may retain in the files of its legal counsel, for archival purposes only, one copy of all written materials returned.
Both Parties acknowledge that the Proprietary Information to be disclosed hereunder is of a unique and valuable character, and that the unauthorized dissemination of the Proprietary Information would destroy or diminish the value of such information. The damages to the Disclosing Party that would result from the unauthorized dissemination of the Proprietary Information would be impossible to calculate. Therefore, both Parties hereby agree that the Disclosing Party shall be entitled to injunctive relief preventing the dissemination of any Proprietary Information in violation of the terms hereof. Such injunctive relief shall be in addition to any other remedies available hereunder, whether at law or in equity. The Disclosing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such relief. Further, in the event of litigation relating to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and expenses.
Neither Party shall use the other's name, likeness, or logo (“Identity”), without prior written consent, to include use or reference their Identity, directly or indirectly, with any other clients or potential clients, any client lists, advertisements, news releases or releases to any professional or trade publications.
Except for the limited license to use materials provided by the Client as may be necessary for Spherical to perform Services under this Agreement, Spherical is granted no right, title, or interest in any of the Client's Intellectual Property.
Each Party will retain all right, title, and interest in and to its own pre-existing Intellectual Property irrespective of any disclosure of such pre-existing Intellectual Property to the other Party, subject to any licenses granted herein.
Nothing contained in this Agreement shall be construed as granting to any Party a license, express or implied, under any patent, copyright, trade secret, or other intellectual property right now or hereafter owned, obtained, or licensable by a Party to this Agreement. Any intellectual property made in the performance of this Agreement solely by the personnel of one Party shall be or remain the sole and exclusive property of that Party, regardless of whether it is completed or reduced to practice thereafter. In the event that employees of the Parties jointly produce copyrightable material, such material shall be jointly owned and copyrighted with rights reserved for both Parties and both Parties shall share in the cost, if such copyright is registered.
If during the performance of this Agreement inventions result, the following shall apply: each invention, discovery, or improvement (hereinafter referred to as “Invention”) conceived or first actually reduced to practice by one or more employees of one of the Parties, shall be the sole property of the Party whose employee or employees made the Invention. Any Inventions conceived or first actually reduced to practice jointly by employees of both Parties hereto shall be jointly owned by both Parties. Patent applications covering such joint Inventions shall be filed by attorneys mutually acceptable to both Parties, and the cost therefore shall be equally shared. In the event one of the Parties does not desire to file a patent application covering a joint Invention in any particular country or to equally share in the expenses therefore, the other Party shall have the right, at its own expense, to file such application and shall have control over the prosecution of such application and maintenance of any patent which may issue thereon, including the sole right to abandon such application or patent at any time.
The Client acknowledges that Spherical possess knowledge and expertise relating to the subject of the Services (“Contractor Know-How”), which may include intellectual property rights in certain pre-existing tools and materials used by Spherical in performing the Services or otherwise. Nothing in this Agreement is intended to transfer to the Client any rights in the Contractor Know-How, which shall remain the property of Spherical.
This Agreement may be terminated by either Party in the event the other Party fails to perform its obligations hereunder on time, fails to assure timely performance, or otherwise fails to perform its material obligations; provided, however, that prior to such termination the terminating Party notifies the defaulting Party in writing at least ten (10) days in advance, states the reasons why the Agreement should be terminated and affords the defaulting Party an opportunity to cure any alleged default during such ten (10) day notice period.
Either Party may terminate this Agreement, upon notice and without liability, in the event the other Party: (a) files a petition in bankruptcy; (b) has filed against it an involuntary petition in bankruptcy not dismissed within thirty (30) days; (c) consents to the appointment of a receiver, custodian, trustee, or liquidator; or (d) dissolves, liquidates or makes a general assignment for the benefit of creditors.
Either Party may terminate this Agreement, or any Services to be performed hereunder, in whole or in part, without cause and for its own convenience, by providing the other written notice of termination at least thirty (30) days in advance, specifying the extent to which the Agreement is so terminated and the date upon which such termination becomes effective. The terminating Party shall have no liability for such termination, except that the Client shall be liable on a prorated basis for Services rendered and/or expenses incurred by Spherical in accordance with this Agreement prior to the effective date of such termination and for which payment has not been made.
In the event that this Agreement is terminated by any means or provision, the Client shall be liable on a prorated basis for Services rendered and/or expenses incurred by Spherical in accordance with this Agreement prior to the effective date of such termination and for which payment has not been made. Spherical shall provide an invoice for Services rendered (the "Final Invoice") within thirty (30) days of the termination, payable in full within twenty (20) days of Client’s receipt of the invoice. Spherical shall, within thirty (30) days of receiving the Client's Final Invoice payment, provide the client with all work product, including unfinished and partially completed works. Spherical does not provide any endorsements, warranties, claims of alignment with the initial scope, or guarantees of functionality, for partially completed works.
Neither Party shall be liable for any failure to perform under this Agreement when such failure is due to causes beyond that Party’s reasonable control, including, but not limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, and prolonged shortage of energy. In the event of such delay, the date of delivery or time for completion will be extended by a period of time reasonably necessary by both Spherical and the Client. If the delay remains in effect for a period exceeding thirty (30) days, The Client may terminate this Agreement immediately upon written notice to Spherical.
The obligations in this Agreement that by their terms naturally survive the expiration or termination of this Agreement shall so survive.
The Spherical and the Client shall at all times be deemed to be independent contractors and nothing herein shall be construed to create or imply that there exists between the Parties a partnership, joint venture, or other combined business organization. Spherical shall hold no authority, express or implied, to commit, obligate, or make representations on behalf of the Client and shall make no representation to others to the contrary. Nothing herein is intended nor shall be construed for any purpose as creating the relation of employer and employee or agent and principal between the Parties. Except as otherwise specified herein, Spherical retains the right to direct, control or supervise the details and means by which the Services are provided. Spherical shall not be eligible for, or participate in, any insurance, pension, workers’ compensation insurance, profit sharing or other plans established for the benefit of the Client employees.
Spherical shall be responsible for payment of all taxes arising out of Spherical’s activities in connection with this Agreement, including without limitation, federal and state income taxes, social security taxes, unemployment insurance taxes, and any other taxes or business license fees as required. The Client shall not be responsible for withholding any income or employment taxes whatsoever on behalf of Spherical.
During the Term of this Agreement and for three (3) months thereafter, neither Party shall directly, nor indirectly, solicit or attempt to solicit any business from any of the other Parties' clients, prospects, employees, or contractors.
Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Spherical, they may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
If any provision of this Agreement shall be held to be invalid or unenforceable, such provision shall be stricken and the remainder of the Agreement shall remain in full force and effect to accomplish the intent and purpose of the Parties. The Parties agree to negotiate the severed provision to bring the same within the applicable legal requirements to the extent possible.
Any failure or delay by either Party to exercise any right, power, or privilege hereunder or to insist upon observance or performance by the other Party of the provisions of this Agreement shall not operate or be construed as a waiver thereof. No waiver shall be binding on either Party unless it is in writing and signed by an authorized representative of the Party to be bound.
This Agreement shall be subject to, and construed and interpreted in accordance with, the laws of the State of Texas, without regard to its conflict-of-law's provisions and the U.N. Convention for the International Sale of Goods (the “Governing Jurisdiction”).
Any dispute, controversy, or claim arising out of or in connection with this Agreement, including without limitation, any dispute regarding the enforceability of any provision, that cannot be resolved through good faith negotiations within thirty (30) days or such longer period of time as may be mutually agreed between the Parties, shall be submitted to, and finally resolved by a court of competent jurisdiction in the Governing Jurisdiction.
This Agreement has been negotiated and concluded in English U.S. It may be translated into any other language for practical purposes, but the English U.S. version shall prevail in the event of any doubt.
Each Party shall indemnify and hold harmless the other Party and its affiliates, directors, officers, employees, partners, contractors or agents, from and against any and all claims, actions, causes of action, demands, or liabilities of whatsoever kind and nature, including judgments, interest, reasonable attorneys’ fees, and all other costs, fees, expenses, and charges (collectively, “Claims”) to the extent that such Claims arise out of or were caused by the negligence, gross negligence, or willful misconduct of the indemnifying Party or from any breach of the Agreement by the indemnifying Party.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES NOR FOR LOSS OF DATA, PROFITS, OR REVENUE, COST OF CAPITAL, OR DOWNTIME COSTS INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT, STATUTE, IMPLIED DUTIES OR OBLIGATIONS, BASED UPON A WARRANTY, OR OTHER LEGAL THEORY, EVEN IF THE OTHER PARTY OR ANY THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, ANY PURPORTED LIMITATION OR WAIVER OF LIABILITY SHALL NOT APPLY TO SPHERICAL’S OBLIGATION UNDER THE INDEMNIFICATION OR CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT OR EITHER PARTY’S LIABILITY TO THE OTHER FOR PERSONAL INJURY, DEATH OR PHYSICAL DAMAGE TO PROPERTY CLAIMS. THE TOTAL LIABILITY OF SPHERICAL TO THE CLIENT SHALL NOT EXCEED THE SUM OF THE FEES PAID TO THE SPHERICAL BY THE CLIENT HEREUNDER.
This document and any exhibits or attachments hereto embody the entire agreement of the Parties with respect to the subject hereof and supersede and cancel all previous negotiations, agreements, or commitments by the Parties, whether oral or written. This Agreement may not be released, canceled, abandoned, amended, or modified in any manner except by an instrument in writing duly signed by each of the Parties hereto.