Sling Services, LLC
MASTER SERVICES AGREEMENT
This Master Services Agreement (‘Agreement’) is entered into by and between Sling Services, LLC (hereinafter, collectively and interchangeably, ‘Sling Services’ or ‘Sling’), a Texas limited liability company, and Client (‘Client’).”
1. Services. Client is requesting Sling Services perform services by completing and signing an Order Form or a Statement of Work (hereinafter, collectively and interchangeably, “Statement of Work” or “SOW”) incorporating this Master Services Agreement (the “Agreement”). Each Statement of Work shall describe the services to be performed (the “Services”), payment, and the other terms of performance as applicable. Each Statement of Work shall be subject to the terms and conditions set forth in this Agreement.
2. Project Management and Reporting.
2.1. Client Project Manager.
For each Statement of Work, Client shall assign a Client employee (the “Client Project Manager”) to be the management-level point of contact available to Sling Services during the term of the Agreement. Client agrees that the Client Project Manager has the power and authority for all communications related to the delivery of Services, identifying appropriate Client resources, approving Client resources and work items, and scheduling meetings. Client understands and agrees that the timeliness of Client Project Manager’s communications will affect Sling Services’ delivery of Services and Client Project Manager will use his or her best efforts to engage with the Sling Services Project Manager on a timely basis.
2.2. Sling Services Project Manager.
For each Statement of Work, Sling Services shall assign a manager to manage Sling Services’ day-to-day activities (the “Sling Services Project Manager”) performed for Client under this Agreement. The Sling Services Project Manager shall serve as Client’s primary point of contact for communications related to the Services.
3. Compliance with Laws. Each Party shall, always and at its sole expense, in performance of its obligations: (i) strictly comply with all applicable laws; and (ii) maintain in full force and effect all required licenses, permits, authorizations, registrations and qualifications.
4. Default
4.1. Sling Services Default.
If Sling Services does not perform its obligations in a timely manner or if the Services do not comply with any material requirements set forth herein or in the applicable Statement of Work, Client may terminate this Agreement and the applicable Statement of Work for cause pursuant to Section 5.2.
4.2. Client Default.
If Client does not perform its obligations in a timely manner, including but not limited to payment of required fees, Sling Services may terminate this Agreement and the applicable Statement of Work for cause pursuant to Section 5.2.
5. Term and Termination
5.1. Initial and Renewal Terms.
This Agreement will be in effect for as long as there is any active Statement of Work entered into by the Parties.
5.2. Termination
If either Party (the “Breaching Party”) breaches any material provision of this Agreement, the non-breaching Party may terminate this Agreement and the applicable Statement of Work upon thirty (30) days written notice to the Breaching Party, specifying the Breaching Party’s breach or default in reasonable detail; provided that such termination shall not be effective if such breach is cured during such thirty (30) day period. Either Party may terminate this Agreement and any active Statement of Work for convenience by providing thirty (30) days written notice to the other Party. In the event of a termination by either Party, Sling Services will cease all work under the terminated SOW upon the effective termination date and Client will not be required to pay for fees incurred after the effective termination date.
6. Fees and Expenses.
6.1. Fees, Invoicing and Payment.
Unless otherwise agreed to in an applicable SOW, Sling Services shall invoice Client monthly for Services rendered since the date of the last invoice and Client shall pay each invoice within fifteen (30) days of the date of such invoice.
6.2. Taxes.
Client is responsible for payment of all applicable taxes related to the Services rendered. Sling Services shall be responsible for payment of all income-related and employment-related taxes related to Sling Services’ personnel.
6.3. Dispute of Invoiced Amounts.
In the event Client has a bona fide dispute with the charges included on any invoice Client shall notify Sling Services in writing within fifteen (15) days of receiving the subject invoice. The written notice of the dispute (the “Dispute Notice”) shall include the disputed fee, a description of the disputed invoice line item(s) and a summary of the reason for the dispute. All undisputed fees owed to Sling Services will continue to be paid while resolution of the disputed fee is being negotiated, and delivery of Services under the applicable Statement of Work will be suspended unless Client otherwise agrees in writing that Sling Services can continue to deliver Services and pays all undisputed fees.
6.4. Past Due Invoice Interest.
All invoices not paid by the invoice due date shall accrue interest at 1.5% monthly or the maximum rate allowed by applicable law, whichever is greater, starting thirty (30) days after the initial due date.
7. Intellectual Property.
7.1. Work Product.
Upon payment of all outstanding fees owed by Client, all works, ideas, inventions, discoveries, designs, prints, plans, and data, as well as any improvements or derivatives thereof developed or created for Client by Sling Services pursuant to an applicable Statement of Work (“Work Product”), are the sole property of Client. To the extent that any Work Product includes any Sling Services Materials, Sling Services licenses the Sling Services Materials to Client under perpetual license, to be used as part of the Work Product, subject to Section 7.4 herein.
7.2. License.
Client grants Sling Services a revocable, limited license to use, without the right to sublicense or distribute, the Client’s data, information, and any Client Intellectual Property supplied to Sling Services for the purpose of carrying out the obligations detailed in this Agreement and all applicable Statements of Work.
7.3. Client Materials.
Client owns and continues to own, all documentation, data and other Client materials that Sling Services receives from Client (collectively and including all copies regardless of whether provided on, before or after the Effective Date, the “Client Materials”). Upon Client’s request, Sling Services shall return to Client or destroy all Client Materials promptly after termination of this Agreement.
7.4. Sling Services Materials.
Sling Services owns and continues to own, all documentation and other materials related to Sling Services’ templates, processes, procedures, methods and/or personnel (collectively and including all copies regardless of whether provided on, before or after the Effective Date, the “Sling Services Materials”). Nothing herein shall be construed as preventing Sling Services from continuing to utilize such templates, processes, procedures and/or methods in connection with work outside of this Agreement and/or work performed for other Sling Services clients. Client shall return to Sling Services or destroy all Sling Services Materials promptly after the earliest of: (i) Sling Services’ request; (ii) completion of the Services required by the last outstanding Statement of Work; or (iii) termination of this Agreement. Sling Services shall also retain ownership of any documents, materials, processes, templates, data, products or services developed outside of this Agreement or any applicable Statement of Work and/or not specifically created for Client.
8. Confidential Information.
8.1. Confidentiality Obligations.
“Confidential Information” includes any information provided by a Party to the other Party related to business plans, systems, Intellectual Property, pricing, the Services and/or business strategies; and (b) any written information provided by a Party to the other Party that is labeled “Confidential” or that the Receiving Party should reasonably consider requiring treatment as Confidential Information. “Confidential Information” excludes information that is: (1) developed by the Receiving Party independently and without access to any information supplied by the Disclosing Party; (2) rightfully obtained by the Receiving Party from a third party who has a right to make such disclosure; (3) publicly available other than through the fault of the Receiving Party; (4) released without restriction by the Disclosing Party to another without obligation of confidentiality; or (5) known to the Receiving Party prior to its disclosure. Sling Services and Client: (i) shall protect the Confidential Information (as described below) of the other with at least the same degree of care used to protect its own confidential information; and (ii) shall not use (except for the purpose described in this Agreement), publish or disclose to third parties such Confidential Information unless such parties are engaged in providing Services under this Agreement or a Statement of Work and need to know such Confidential Information to render such Services.
8.2. Compelled Disclosure.
If disclosure of any Confidential Information is required by law, the Party required to disclose the other’s information shall, to the extent practicable and allowable under law, notify the other Party in writing prior to the disclosure and shall take appropriate action to safeguard the confidentiality of such information including by disclosing the minimum amount of information required to meet the request.
8.3. Permitted Disclosure.
Either Party may disclose the other Party’s Confidential Information to its legal advisors, accountants, third party contractors, subcontractors and business consultants who are obligated to maintain confidentiality of the Confidential Information and whose services for such party require access to the Confidential Information.
8.4. Injunctive Relief.
Each Party agrees that remedy at law may be inadequate to compensate the other for a breach of this Section 8 and that an aggrieved Party may be entitled to seek temporary or permanent injunctive relief against any such breach, in addition to any other remedy which may be available at law or in equity.
8.5. Collection and Use of Information.
Where Client has collected sensitive information regulated by statute (including, without limitation: personally identifiable information or information subject to HIPAA compliance mandates), Client will identify such information to the Sling Services Project Manager before executing the Statement of Work, and the parties will agree in writing as to how such information will be handled. If the parties agree that Sling Services will be required to access, download or store any data governed by HIPAA in connection with the Services, the Parties will enter into a Business Associate Agreement (“BAA”), which is hereby incorporated into and made part of and subject to the terms of this Agreement.
9. Indemnification.
9.1. Indemnity.
Each Party shall indemnify, defend and hold harmless (“Indemnify”) the other Party and its shareholders, directors, affiliates, officers, employees and representatives (collectively, the “Indemnitees”) from and against all losses, liabilities, damages, demands, claims, suits, actions, causes of action, judgments, settlements, assessments, costs and expenses related to: (i) the Indemnifying Party’s breach of the representations, warranties, agreements or obligations under this Agreement; (ii) any grossly negligent act or omission of the Indemnifying Party or it’s personnel, agents or contractors; and/or (iii) any property damage and/or bodily injuries caused by or related to the intentional or willful misconduct of any of the Indemnifying Party’s personnel. The foregoing obligations are conditioned on the Party seeking indemnity (a) notifying the Indemnifying Party promptly in writing of such action; (b) giving the Indemnifying Party sole control of the defense thereof and any related settlement negotiations; and (c) at the Indemnifying Party’s reasonable request and expense, cooperating with and assisting in such defense.
9.2. Indemnity Related to Sensitive Information.
Client agrees to indemnify Sling Services from and against, any damage, loss, claim or expense associated with Client’s failure to comply with its obligations under Section 8.5.
10. Warranties and Remedies.
10.1.Client’s Representations and Warranties.
When Client signs this Agreement and each Statement of Work, it represents and warrants that: (i) Client has the full power, capacity and authority to enter into this Agreement; (ii) Client shall perform its obligations under this Agreement and each Statement of Work, and make the required payments to Sling Services for Services rendered; and (iii) Client is not insolvent and does not foresee any event that would reasonably be expected to have a negative impact on Client’s ability to perform under this Agreement.’
10.2.Sling Services’ Representations and Warranties.
When Sling Services signs this Agreement and each Statement of Work, it represents and warrants that: (i) Sling Services has the full power, capacity and authority to enter into and perform this Agreement; (ii) Sling Services shall perform all Services in a professional manner with requisite care, skill and diligence, in accordance with industry standards by individuals who are appropriately trained, experienced and qualified and who are legally authorized; and (iii) all Services shall conform to the specifications and requirements in this Agreement and the applicable Statement of Work for a period of one (1) year from the date the Services are delivered.
10.3.Disclaimer of Other Warranties.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR STATEMENT OF WORK, NEITHER PARTY MAKES ANY IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED.
10.4.No Responsibility for Third Parties.
Sling Services will not be responsible for performance deficiencies, inconsistent or unacceptable response times, functional defects or concurrent limitations of external integration points managed by third party service providers or Client and caused solely by these third parties or Client personnel. The quality and performance of Client and/or third-party integration points are the responsibility of Client unless Sling Services specifically accepts responsibility in any Statement of Work issued under this Agreement. Client is responsible for procuring all necessary licenses to allow Sling Services to provide the Services, and for providing Sling Services access to any licensed platforms necessary for performing the Services.
10.5.Insurance.
Sling Services will maintain industry standard levels of insurance coverage throughout the entire term of this Agreement. Upon Request, Sling Services will supply Client with a current copy of its certificate of Insurance.
11. Limited Liability. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT, THE BAA, AND/OR ANY STATEMENT OF WORK FOR (1) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; (2) LOST PROFITS, EXPECTANCIES OR BUSINESS INTERRUPTION LOSSES; AND/OR (3) ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES ACTUALLY PAID TO SLING SERVICES BY CLIENT UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. General Provisions.
12.1.Right of Use.
The Client hereby authorizes Sling Services and/or Salesforce to use the Client’s name and/or logo in connection with marketing materials related to the Services, and/or in customer lists distributed by Sling Services. Client agrees that Sling Services may prepare a customer testimonial (“Success Story”) for Client’s review, which may, subject to Client’s approval, be used for marketing purposes by Sling Services.
12.2.Independent Contractors.
Sling Services is an independent contractor and is not an agent, employee or partner of the Client.
12.3.Assignment.
Neither Party may assign or transfer this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld; provided, that the non-assigning Party’s consent will not be necessary in the event the assigning Party transfers its rights or obligations to a successor entity that assumes substantially all its assets and liabilities. Any assignment (or attempted assignment) of this Agreement in violation of this Section is void.
12.4.Force Majeure.
If either Party cannot perform or is delayed in performing any of its obligations because of any cause outside of the Party’s reasonable control that could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing Party shall: (i) immediately notify the other Party in writing; (ii) promptly at its sole expense take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. The obligations and rights of the Party so excused will be extended on a day-to-day basis for the period of time commensurate with the underlying cause of the delay. If a Force Majeure Event continues beyond a reasonable time period, either party may terminate this Agreement upon written notice to the other party.
12.5.Governing Law.
This Agreement is governed by and construed in accordance with the laws of the State of Texas, without reference to conflicts of law principles. The exclusive venue and jurisdiction for all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Collin County, Texas.
12.6.Waiver.
Except as otherwise expressly set forth herein, no waiver of any right or remedy under this Agreement is effective unless it is in a writing signed by an authorized representative of the Party to be charged. Any waiver, in whole or in part, of any provision of this Agreement is not a waiver of any other provision.
12.7.Severability.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement.
12.8.Construction.
All section headings in this Agreement are intended for reference purposes only and will not affect the interpretation of this Agreement. This Agreement will not be construed in favor or against either Party by reason of the authorship of any provision.
12.9.Legal Fees.
If any dispute arises between the Parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable costs and documented attorneys’ fees.
12.10. Conflict Between and Among Documents.
In the event of a conflict between this Agreement and any Statement of Work and/or BAA, the order of precedence shall be the BAA, the applicable Statement of Work, and this Agreement.
Entire Agreement. This Agreement, together with the Statement of Work issued hereunder and any BAA signed by the Parties, comprises the entire agreement between the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, agreements, purchase orders and understandings by or between the Parties. This Agreement may be amended or modified only in a written amendment or addendum signed by both Parties.