Master Services Agreement
IMPORTANT! THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN SYNDI CO. DBA APM HELP (“APM HELP”) AND YOU AS CUSTOMER (“CUSTOMER” OR “YOU”) IN CONNECTION WITH THE SERVICES TO BE PROVIDED BY APM HELP AS CONTEMPLATED UNDER THE APPLICABLE ORDER FORM (THE “ORDER”) TO WHICH THIS AGREEMENT IS INCORPORATED BY REFERENCE. BY EXECUTING THE ORDER, CLICKING “I AGREE”, ACCESSING OR USING THE SERVICE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF CUSTOMER, AND ARE DOING SO, (B) YOU AND CUSTOMER CAN LEGALLY ENTER INTO THIS AGREEMENT AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND CUSTOMER SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, APM HELP WILL NOT PROVIDE THE SERVICES TO YOU.
APM Help provides support and assistance in connection with the AppFolio, Propertyware, and Buildium application(s), including, consulting services, bank reconciliations, financial diagnostics, training, migration and audits.
Customer wishes to engage APM Help as an independent contractor for the purpose of providing the services (collectively, the “Services”) set forth in each Order on the terms and conditions set forth below; and
APM Help wishes to provide the Services in accordance with the terms of this Agreement and the applicable Order,NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1. Customer hereby engages APM Help as an independent contractor, and APM Help accepts such engagement, to provide the Services and all Work Product (as defined below) (if any) in accordance with the applicable Order and the terms and conditions set forth herein. It is understood, however, that neither party is obligated to retain the services of, or furnish services to, the other until, unless, and only to the extent that an Order is signed by both parties. Any such Services may be provided by employees or contractors of APM Help.1.2. Unless otherwise set forth in the applicable Order, APM Help shall be solely responsible at its cost for providing all equipment and other materials as necessary to provide the Services and deliver the Work Product in accordance with the terms of this Agreement. 1.3. In the event of a conflict between this Agreement and any Order, the terms of the Order shall govern and control. 1.4 Customer acknowledges and agrees that APM Help shall be free to provide Services to any other company without restriction, including competitors and potential competitors of Customer.
2. SCOPE OF WORKThe scope of Services shall be as described in the applicable Order, and shall include all Work Product and all materials and other deliverables to be provided by APM Help. Changes to the scope of Services under any Order shall not be effective unless and until agreed upon in writing by both parties.
3. COMPENSATION3.1. APM Help shall be paid for the Services and the Work Product in accordance with the applicable Order. 3.2. APM Help shall be solely responsible and liable for all expenses and any other costs arising from or relating to the Services, the Work Product, the Order and/or this Agreement unless otherwise set forth in the applicable Order.
4. OWNERSHIP OF WORK PRODUCT AND THIRD-PARTY MATERIALS4.1. Unless otherwise specifically set forth in the applicable Order, Customer acknowledges that all ideas and creative and other work product of whatever type or nature conceived, produced, or developed prior to the Effective Date or under or directly in connection with this Agreement or any Order by APM Help and materials of any nature furnished by APM Help to Customer (collectively “Work Product”) shall be and remain the property of APM Help. Notwithstanding the foregoing, APM Help shall not have any ownership in any ideas and other work and materials provided by Customer to APM Help (“Customer Materials”); provided that, subject to Section 5, Customer grants to APM Help a non exclusive, worldwide, royalty free, fully paid-up right and license to use any Customer Materials in connection with the Services and the Work Product. 4.2. Unless otherwise specifically set forth in the applicable Order, Customer specifically agrees that all copyrightable Work Product generated or developed under this Agreement (“Material”) shall, upon creation, be owned exclusively by APM Help. 4.3. To the extent necessary or desirable to give effect to APM Help’s ownership interests in the Work Product as described in Section 4.1, Customer hereby transfers, grants, conveys, assigns, and relinquishes exclusively to APM Help all of Customer’s right, title, and interest in and to any such Work Product, under patent, copyright, trade secret, and trademark law, in perpetuity or for the longest period otherwise permitted by law. 4.4. Customer shall perform any acts that may be deemed necessary or desirable by APM Help to evidence more fully the transfer of ownership of all Work Product to APM Help. 4.5. To the extent that any work product or intellectual property provided by Customer (“Customer Provided IP”) is embodied or reflected in the Work Product, Customer hereby grants to APM Help a non-exclusive, world-wide, fully paid-up and royalty-free right and license to use such Customer Provided IP in connection with the Services and the Work Product. 4.6. Subject to payment of all fees and other amounts due to APM Help under this Agreement and the applicable Order, APM Help grants to Customer a perpetual, irrevocable, non exclusive, worldwide, royalty free, fully paid-up right and license to use any Work Product or Materials exclusively for internal business purposes. Customer shall not resell or otherwise transfer any such Work Product or Materials.
5. CONFIDENTIALITY5.1. Each party (“Receiving Party”) acknowledges that during the Term of this Agreement, Receiving Party may develop or learn information (“Confidential Information”) that is confidential and proprietary to the other party, its vendors or its customers (“Disclosing Party”). Receiving Party agrees not to disclose such Confidential Information to any third party or otherwise to use such Confidential Information, directly or indirectly, except in connection with the performance of the Services and the delivery of the Work Product, without the prior written consent of Disclosing Party. Notwithstanding the foregoing, Receiving Party may disclose the Confidential Information to its employees and contractors who have a need to know in connection with the performance of the Services and the delivery of the Work Product and who are subject to terms of confidentiality no less restrictive than set forth in this Section 5; provided that Receiving Party shall be liable for the breach of the terms of this Section 5 by any of its employees, contractors or agents. Receiving Party shall maintain the confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own most highly confidential information, but in any event shall use at least commercially reasonable measures to protect the confidentiality of and avoid disclosure of the Confidential Information. 5.2. Disclosing Party shall not disclose to Receiving Party any confidential or proprietary information of any third party without the prior written consent of such third party.
6. REPRESENTATONS AND WARRANTIES6.1. APM Help hereby represents and warrants to Customer as follows: 6.1.1. APM Help has the authority to enter into this Agreement and that this Agreement constitutes its legal, valid, binding and enforceable agreement; 6.1.2. The Services shall be performed in accordance with good industry standards and the Work Product shall be of good quality and free from material defects in workmanship and materials; 6.1.3. Execution and performance of this Agreement (a) do not breach any agreement of APM Help with any third party, or any duty arising in law or equity, (b) do not violate any law, rule or regulation applicable to it and (c) are within its powers; 6.1.4. There are no legal actions pending or threatened against APM Help that could interfere with the performance of the Services and the delivery of the Work Product under this Agreement, and APM Help covenants that it shall promptly inform Customer of any such events that occur during the term of this Agreement; and 6.1.5. APM Help (a) is in the business of providing similar services to meet the requirements of its clients and (b) has substantial expertise in the performance of the Services and the delivery of the Work Product. 6.2. Customer hereby represents and warrants to APM Help as follows: 6.2.1. Customer has the authority to enter into this Agreement and that this Agreement constitutes its legal, valid, binding and enforceable agreement; 6.2.2. Execution and performance of this Agreement (a) do not breach any agreement of Customer with any third party, or any duty arising in law or equity, (b) do not violate any law, rule or regulation applicable to it and (c) are within its powers; 6.2.3. There are no legal actions pending or threatened against it that could interfere with the performance of its obligations under this Agreement; and 6.2.4. Customer shall use commercially reasonable efforts to notify APM Help of any changes to its procedures affecting APM Help’s obligations under this Agreement at least 30 days prior to implementing such changes. 6.3 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6.1 AND ANY WARRANTIES, SPECIFICATIONS OR REQUIREMENTS AS SET FORTH ON THE APPLICABLE ORDER, THE SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS” AND APM HELP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, WORK PRODUCT AND MATERIALS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING AND EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6.1 AND ANY WARRANTIES, SPECIFICATIONS OR REQUIREMENTS AS SET FORTH ON THE APPLICABLE ORDER, APM HELP PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES AND WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
7. INDEMNIFICATION7.1 APM Help hereby indemnifies and holds harmless Customer, and each of its officers, directors, agents, contractors, subcontractors, licensees and employees (collectively referred to as the “Customer Indemnitees”), and each of them, against and from any and all allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatever nature (including reasonable attorneys’ fees), and whether by reason of death of or injury to any person or loss of or damage to any property or otherwise from any third party (collectively, “Customer Claims”), arising out of or in any way connected with (a) any actual or alleged violation or breach by APM Help (including its employees and contractors of any representations or warranties or of the terms and conditions of this Agreement or (b) the negligence or willful misconduct of APM Help (including its employees and contractors), or any related act or failure to act by APM Help (including its employees and contractors). If any Customer Claim is made or any action or proceeding is brought against Customer Indemnitees, or any of them, any such Customer Indemnitee may, by notice to APM Help, require APM Help, at APM Help’s expense, to resist such Customer Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior approval of such Customer Indemnitee. The reimbursement, indemnity and contribution obligations of APM Help under this Section 7.1 shall be in addition to any liability that APM Help may otherwise have, and shall extend upon the same terms and conditions to Customer Indemnitees. 7.2 Customer hereby indemnifies and holds harmless APM Help, and each of its officers, directors, agents, contractors, subcontractors, licensees and employees (collectively referred to as the “APM Help Indemnitees”), and each of them, against and from any and all allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatever nature (including reasonable attorneys’ fees), and whether by reason of death of or injury to any person or loss of or damage to any property or otherwise from any third party (collectively, “APM Help Claims”), arising out of or in any way connected with (a) any actual or alleged violation or breach by Customer (including its employees and contractors of any representations or warranties or of the terms and conditions of this Agreement or (b) the negligence or willful misconduct of Customer (including its employees and contractors). If any APM Help Claim is made or any action or proceeding is brought against APM Help Indemnitees, or any of them, any such APM Help Indemnitee may, by notice to Customer, require Customer, at Customer’s expense, to resist such APM Help Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior approval of such APM Help Indemnitee. The reimbursement, indemnity and contribution obligations of APM Help under this Section 7.2 shall be in addition to any liability that APM Help may otherwise have, and shall extend upon the same terms and conditions to APM Help Indemnitees.
8. SOLICITATION OF EMPLOYEES AND CONTRACTORS; NON-COMPETE8.1 During the Term and for a period of one year following completion of all Services, Customer shall not offer, or assist any other person to offer, employment to any then current employee or contractor of APM Help or attempt, directly or indirectly, to persuade any such employee or APM Help to terminate his or her employment. 8.2 Customer agrees that during the term of this Agreement and for twenty-four (24) months thereafter, it will not engage, directly or indirectly, in any business or activity that directly or indirectly competes with any current or planned business or services of APM Help.
9. TERM AND TERMINATION9.1. This Agreement shall become effective immediately following the end of the Pilot Period (as specified in the applicable Order) and shall, unless terminated earlier pursuant to any of its express provisions, continue thereafter for a period of twelve (12) months (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive twelve (12) month terms, or for such shorter period as may result from termination pursuant to an express provision hereof, unless either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term (together with the Initial Term, the “Term”). 9.2. Customer or APM Help may terminate any Order and/or this Agreement in full if the other party breaches the terms of such Order or this Agreement and the breaching party fails to cure any such breach within thirty (30) days of notice of such breach by the non-breaching party. 9.3. APM Help may terminate any Order and this Agreement by providing prior written notice to Customer if it believes that Customer (a) is acting or operating dishonestly or unethically or in a way that could harm APM Help or its business; or (b) has committed any crime involving fraud or embezzlement. 9.4. Upon any termination of this Agreement, (a) Customer shall promptly pay all amounts due and payable to APM Help hereunder and (b) each party shall (i) immediately discontinue all use of the other party’s; (ii) delete the other party’s Confidential Information from its computer storage or any other media; and (iii) return to the other party or destroy (with written certification), all copies of such other party’s Confidential Information then in its possession. 9.5. In addition to those Sections of this Agreement which by their nature are intended to survive any expiration or termination of this Agreement, Sections 4, 5, 6.1, 7, 8, 9.4, 10 – 14 and this Section 9.5 shall specifically survive any expiration or termination of this Agreement.
10. INDEPENDENT CONTRACTORThe parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. APM Help is and will remain an independent contractor in its relationship to Customer. Customer shall not be responsible for withholding taxes with respect to APM Help’s compensation hereunder. APM Help shall have no claim against Customer hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee or other benefits of any kind. Nothing in this Agreement shall create any obligation between either party and a third party.
11. TAXESUnless otherwise set forth in an Order or provided by law, Customer shall be responsible for any sales or use taxes directly arising in connection with the Services and the Work Product. APM Help shall be solely responsible and liable for all other compensation, taxes, benefits, charges, license fees, expenses and any other costs arising from or relating to the Services, the Work Product, any Order and/or this Agreement.
12. DISPUTE RESOLUTION12.1. If any controversy, claim or dispute arising out of or relating to this Agreement, including the breach or interpretation of this Agreement or any Order (collectively, a “Dispute”) is not resolved within thirty (30) days from the date that either party provides the other party with written notice of the existence thereof, then each party shall designate an executive who is authorized to investigate, negotiate and settle the Dispute. The executives shall exercise good faith efforts to settle the Dispute. If the executives do not resolve the Dispute within thirty (30) days (or an extended period if they so agree), then the parties shall resolve the Dispute in accordance with Section 12.2. No court or other action pertaining to a Dispute shall be pursued unless this dispute resolution procedure has been exhausted. Nonetheless, either party at any time may pursue equitable relief before any court of competent jurisdiction in order to protect its intellectual property rights or Confidential Information. 12.2. Any Dispute that is not resolved in accordance with Section 12.1 shall be determined by, and subject to the exclusive jurisdiction of, the federal and state courts in Texas that include Houston, Texas, and the parties agree to the personal and exclusive jurisdiction of these courts. The parties hereby agree that any such court shall be a proper forum for the determination of any dispute arising hereunder and waive any defenses based upon inconvenient forum or jurisdiction. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER 12.3. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to any Dispute, then the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
13. LIMITATION OF LIABILITY.EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF SECTION 4, 5 OR 8, OR WITH RESPECT TO ANY OBLIGATION UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APM HELP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ORDER, THE SERVICES OR ANY WORK PRODUCT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO APM HELP UNDER THE APPLICABLE ORDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The essential purpose of this provision is to limit the potential liability of the parties arising out of this Agreement or an Order whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
14. MISCELLANEOUS14.1. This Agreement shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict-of-law principles. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods, which shall not apply to this Agreement, any Order or the parties’ performance hereunder. 14.2. In the event that any provision of this Agreement shall be adjudged illegal or otherwise unenforceable, such provision shall be severed and the balance of this Agreement shall continue in full force and effect. 14.3. The waiver by Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any other breach. 14.4. Customer shall not assign, by operation of law or otherwise, this Agreement or any Order, and/or the performance of any of the Services without the prior written consent of APM Help. 14.5. Each party acknowledges that if the other party were to breach the terms of Sections 4, 5, 7, or 8, the harm to such other party would be irreparable. Accordingly, each party agrees that in the event of any such breach, such other party shall be entitled to obtain injunctive relief without posting a bond. 14.6. Except as provided in Section 12.2, the rights and remedies of the parties hereunder shall not be exclusive, and are in addition to any of other rights provided by this Agreement or by law. 14.7. This Agreement and each Order are the entire agreement of the parties with respect to the Services and any Work Product by APM Help for and on behalf of Customer. Any additional terms or any modification to this Agreement shall not be binding on either party unless in a writing duly signed by the party to be charged. 14.8. Each party shall adhere to all applicable export laws and regulations and shall not export or re-export or otherwise transmit, directly or indirectly, any information or products except with the applicable government export approvals or permits. 14.9. APM Help shall have the right to identify Customer as a client and to use its logo on its website and in any other promotional materials. Subject to the foregoing, no publicity releases (including news releases and advertising or solicitation materials) or other public statements relating to this Agreement or the Services to be performed hereunder shall be issued or made by APM Help without the prior written approval of Customer. No technical paper, article or documentary, or oral or visual presentation by APM Help concerning any aspect of Customer’s business shall be presented or disclosed by APM Help to any person without the prior consent and approval of Customer. Customer may withhold such written approval in its sole discretion. [End of Agreement]