Master Service Agreement
Master Services Agreement
This Master Service Agreement (“Agreement”) is made between Automate America, Inc. (“Automate America”), with a principal place of business at PO BOX 1638, Greer, SC 29652, and Users defined as “Companies” who do not contract or hire the independent contractors (“Suppliers”) direct and need Automate America to act as the Umbrella Pass through Company for payments due to vendor requirements of the (“Client Company”).
The parties agree as follows:
Automate America agrees to provide certain workers (“Assigned Workers”) to Customer to perform work as assigned by Customer from time to time (“Services”). The Services shall be set out in the initial Statement of Work attached hereto as Exhibit A and subsequent statements of work accepted by and agreeable to Automate America (each, a “Statement of Work”). Additional Statements of Work shall be deemed issued and accepted only if expressly agreed by the Automate America Contract Manager and the Customer Contract Manager.
2. Automate America Obligations
Automate America shall:
2.1. Designate a Automate America Contract Manager as set forth in the Statement of Work.
2.2. Provide the Assigned Workers to Customer to perform the Services.
2.3. Compensate the Assigned Workers providing the Services in accordance with applicable law.
2.4. At the request of the Customer, remove any of the Assigned Workers, provided that Customer’s request does not violate any applicable law.
2.5. Verify that the Assigned Workers are authorized to lawfully work in the United States and, at the Customer’s request, will undergo and successfully complete a drug/alcohol test and criminal background check prior to being assigned to Customer.
2.6. Comply with all applicable Federal, State, and local laws and regulations including but not limited to, if applicable, those related to equal employment opportunity and employment discrimination, the Fair Labor Standards Act, and other laws governing wages, hours and benefits.
3. Customer Obligations
3.1. Designate a Customer Contract Manager as set forth in the Statement of Work, who (or some other agreed upon designee) authorized to verify time records and charges associated with the Assigned Workers.
3.2. Provide the Assigned Workers with a suitable place of work that complies will applicable Federal, State, and local health and safety laws, and other laws applicable to workplace conditions.
3.3. Provide timely payment to Automate America as set forth in this Agreement.
3.4. Comply with all applicable Federal, State, and local laws and regulations including but not limited to, if applicable, those related to equal employment opportunity and employment discrimination, the Fair Labor Standards Act, and other laws governing wages, hours and benefits.
4. Direction of the Assigned Workers
While the Assigned Workers will be provided by Automate America, the parties agree on the following:
4.1. Customer is providing the direction, control, and authority of the Assigned Workers. Automate America is not providing the direction and control of the actual work being performed.
4.2. The Assigned Workers may be directly employed by Automate America or may have a Supplier Service Agreement (independent contractor) with Automate America but will report to the Customer Contract Manager or his/her designee.
4.3. The Assigned Workers will provide their own vehicles, and all equipment and materials used to provide the Services required under this Agreement.
4.4. Customer may direct Assigned Workers to observe and obey all policies, procedures, rules and regulation of the Customer while the Assigned Workers are on the Customer’s premises.
5. Relationship Created
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
In consideration of the provision of the Services, Customer shall pay the fees set out in the Statement of work. Unless otherwise provided in the applicable Statement of Work, said fee will be payable within 30 days of receipt of an invoice from Automate America, but in no event more than 45 days after completion of the Services performed pursuant to the applicable Statement of Work.
6.1. Customer shall reimburse Automate America for all reasonable expenses incurred in accordance with the Statement of Work or the Services if such expenses have been pre-approved, in writing, by the Customer Contract Manager, within 30 days of receipt by the Customer of an invoice from Automate America accompanies by reasonable supporting documentation of such expenses.
6.2. All late payments shall bear interest at the lesser of the rate of 5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Automate America for all costs incurred in collecting any late payments, including, without limitation, attorneys; fees. In addition to all other remedies available under this Agreement or ta law (which Automate America does not waive by the exercise of any rights hereunder), Automate America shall be entitled to suspend or terminate the provision of any Services without recourse or liability if the Customer fails to pay any amounts or fees when due hereunder and such failure continues for 5 days following written notice thereof.
6.3. Automate America shall issue invoices to Customer only in accordance with the terms of this Agreement and applicable Statements of Work. All payments hereunder shall be in US dollars and made by check or wire transfer.
7. Limited Warranty and Limitation of Liability
7.1. Automate America warrants that it shall perform the Services:
7.1.1. In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement.
7.1.2. Using Assigned Workers of commercially reasonable standard with required skill, experience and qualifications.
7.1.3. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
7.2. Automate America’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
7.2.1. Automate America shall use reasonable commercial efforts to promptly cure any such breach, provided, that if Automate America cannot cure such breach within a reasonable time (but no more than 30 days after Customer’s written notice of such breach), Customer may, at its option, terminate the Agreement by serving written notice of termination as set forth herein. In the event of such termination, Automate America shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Services, less a deduction equal to the fees for receipt or use of such Services up to and including the date of termination on a pro-rated basis.
7.2.2. This remedy shall not be available unless Customer provides written notice of and opportunity to cure such breach.
7.2.3. Automate America shall not be responsible for its obligations under this Agreement if it is prevented or delayed by any act or omission of the Customer, and shall otherwise not in any such circumstances be liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7.3. AUTOMATE AMERICA MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN THIS SECTION. ALL OTHER WARRANTIES OF ANY NATURE, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
7.4. IN NO EVENT SHALL AUTOMATE AMERICA BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 7 days thereafter, is summarized in writing and confirmed as confidential (”Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section only, Receiving Party’s Group shall mean the Receiving Party’s employees, officers, directors, attorneys, accountants, and financial advisors. The terms and quotations herein and in the Statement of Work are considered confidential and shall not be disclosed to any other party or entity.
9. Term and Termination
This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all applicable Statements of Work unless sooner terminated herein.
9.1. Either party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
9.1.1. Materially breaches this Agreement and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
9.1.2. Becomes insolvent or admits its inability to pay its debts generally as they become due, files for bankruptcy, or makes a general assignment for the benefit of creditors.
9.2. Automate America may terminate this Agreement on written notice if Customer fails to pay any amount when due hereunder.
9.3. Either party may terminate this Agreement for any reason upon providing 14 days written notice.
9.4. Except as otherwise expressly provided in this Agreement, Automate America is entitled to all compensation due under this Agreement through the date of termination.
9.5. Upon expiration or termination of this Agreement for any reason:
9.5.1. Automate America can remove its Assigned Workers and any of its or their equipment, if applicable, at and from Customer’s premises;
9.5.2. Each party shall promptly return to the other party all documents and tangible materials belonging to the other party;
9.5.3. Certify in writing to the other party upon request that it has permanently erased any Confidential Information belonging to the other party from its computer systems.
10. Entire Agreement
This Agreement, including and together with any related Statements of Work, and exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions will remain in full force if the essential provisions of this Agreement for Automate America and Customer remain valid, binding, and enforceable.
This Agreement may only be amended, modified, or supplemented by an agreement or Statement of work writing signed by each party. The terms of this Agreement and any applicable Statement of work rule the relationship between the parties. No terms on any Customer invoice, purchase order, or website contrary to or additional to the terms set forth herein shall be of any effect or otherwise enforceable.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Neither party may assign this Agreement without the prior written consent of the other party. This Agreement shall be binding upon the parties, their successors, heirs and assigns.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other party’s designated Contract Manager at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid) or as otherwise upon effective receipt by the receiving party.
15.1. Automate America agrees to defend, indemnify and hold the Customer and its officers, directors, employees, agents, attorneys and suppliers harmless from and against any damages, liabilities, law suits and expenses (including reasonable attorneys’ fees) of any kind or nature whatsoever which may be sustained or suffered, arising out of, based upon or by reason of (a) breach of representation or warranty of, or failure to perform any covenant made by Automate America herein or taking a position that contradicts the representations set forth in this Agreement, (b) Automate America’s violation of laws, ordinances or regulations resulting directly or indirectly from, or in any way relating to, the Services being provided in this Agreement, except to the extent that such noncompliance results from any act or omission requested by or committed by Customer; and (c) claims for bodily injury to or death of any person (other than officers and direct employees of Automate America) or damage to or destruction of any property, to the extent caused by negligence or misconduct on the part of Automate America, its officers or employees (other than the Assigned Workers while acting within the scope of their engagement with Customer), except for any such claims resulting from negligence or misconduct on the part of the Customer, its officer, and employees, and except to the extent covered by insurance of either Automate America or Customer; (c) any claim, action or proceeding asserted, instituted or growing out of any matter for which Automate America has agreed to indemnify the Customer.
15.2. Customer agrees to defend, indemnify and hold Automate America and its officers, directors, employees, agents, attorneys and suppliers harmless from and against any damages, liabilities, law suits and expenses (including reasonable attorneys’ fees) of any kind or nature whatsoever which may be sustained or suffered, arising out of, based upon or by reason of (a) breach of representation or warranty of, or failure to perform any covenant made by Customer herein or taking a position that contradicts the representations set forth in this Agreement, (b) Customer’s violation of laws, ordinances or regulations resulting directly or indirectly from, or in any way relating to, the Services being provided in this Agreement, except to the extent that such noncompliance results from any act or omission requested by or committed by Automate America; and (c) claims for bodily injury to or death of any person (other than officers and direct employees of Customer) or damage to or destruction of any property, to the extent caused by negligence or misconduct on the part of Customer, its officers or employees, except for any such claims resulting from negligence or misconduct on the part of Automate America, its officers, and employees (other than those caused by the Assigned Workers while acting within the scope of their engagement with Customer), and except to the extent covered by insurance of either Customer or Automate America; (c) any claim, action or proceeding asserted, instituted or growing out of any matter for which Customer has agreed to indemnify Automate America.
15.3. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any pending action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnified party may participate in and observe the proceedings at its own cost and expense.
Automate America retains the right to perform the same or similar types of services for other companies and entities during the term of this Agreement and/or use the services of other companies to provide similar services. Customer also retains the right to hire any of the Appointed Workers directly, as long as Appointed Worker is an independent contractor, or direct employment of another company’s employee has been agreed upon in writing prior to company’s employee accepting employment.
17. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina, without giving effect to South Carolina’s rules of conflicts of law, and regardless of the place or places of its physical execution and performance. The parties agree that all claims must be brought exclusively in courts of competent jurisdiction in Greenville, South Carolina.