h-Bar Solutions Master Services Agreement
Scope of Agreement:
This Master Services Agreement (“Agreement”) describes the terms under which h-Bar will provide Services to the Customer (“Customer”, also called “you” and “your”). h-Bar will provide a Statement of Work (“SOW”) that describes the nature of the work (the “Services”) to be provided by h-Bar to the Customer.
Professional Services:
h-Bar shall provide Professional Services in accordance with the applicable SOW or other agreed upon documentation containing the specifics of such services. Professional Services are provided as a separate and independent service even if mentioned together with the sale or licensing of Products by Supplier in the same Order. Supplier is not providing legal or regulatory advice in any Professional Services. h-Bar will perform Services in a workmanlike manner in accordance with generally accepted industry standards. The customer must notify h-Bar of any failure to perform within 10 days after the date on which such failure first occurs. In such a case, h-Bar will use reasonable efforts to correct such failure within a reasonable period of time.
Fees & Payment:
Customer agrees to pay all fees specified in the Statement of Work. h-Bar will submit invoices electronically to the customer’s designated point as specified in the SOW. The customer agrees to pay the invoice submitted by h-Bar within fifteen (15) days from receipt of the invoice. Failure to pay within this time frame constitutes a material breach of the contract and may result in a suspension of services. Payments not received within fifteen (15) days are subject to a 1.5% late fee per month beginning on the 16th day from the invoice date. The client shall be responsible for all taxes, withholdings, duties and levies arising from the services.
Modifications:
Modifications to this Agreement or the SOW may be made only in writing and signed by authorized representatives of both parties. The terms of this Agreement or the SOW shall remain intact except to the extent they are expressly modified in writing and signed by both parties.
Disputes:
Unless otherwise specified in the Agreement, each Party will allow the other a reasonable opportunity to comply before it claims the other has not met its obligations under this Agreement. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, neither Party will bring a legal action, regardless of form, arising out of or related to this Agreement or any transaction under it more than two (2) years after the cause of action arose; after such time limit, any legal action arising out of this Agreement or any transaction under it and all respective rights related to any such action lapse. Each Party expressly waives any right to a jury trial in any proceeding arising out of or related to this Agreement.
Governing Law & Jurisdiction:
Circumstances may arise where, because of default or other liability, a Party is entitled to recover damages from the other. The following terms apply as Customers’ exclusive remedy and h-Bar Solutions exclusive liability. Regardless of the basis on which customer is entitled to claim damages from h-Bar Solutions (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), h-Bar Solutions entire liability for direct damages with respect to a claim shall in no circumstances exceed the greater of: (i) the amount paid for the Order giving rise to the claim or (ii) ten thousand United States Dollars (U.S. $10,000). h-Bar Solutions maximum aggregate liability, in connection with its performance or observance of its obligations, or otherwise under this Agreement and all Orders is one hundred thousand United States Dollars (U.S. $100,000). Except as expressly required by law without the possibility of contractual waiver, under no circumstances is h-Bar Solutions or Subcontractors liable for any of the following even if informed of their possibility: (i) loss of, or damage to, data; (ii) special, incidental, exemplary, or indirect damages, or for any economic consequential damages; or (iii) lost profits, business, revenue, goodwill or anticipated savings. No right or cause of action for any third party is created by this Agreement, or any transaction under it, nor is h-Bar responsible for any third-party claims against Customer. In addition to damages for which Customer is liable under applicable law or the terms of this Agreement, Customer will indemnify h-Bar for claims made against h-Bar Solutions by others arising out of Customer’s breach of or conduct under this Agreement or as a result of Customers’ relationship with any third party, including without limitation, any claim based on representations, statements, claims, or warranties not authorized by h-Bar Solutions. Except as stated in this clause, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within 18 months after the cause of action accrues.
Intellectual Property Rights:
h-Bar Solutions shall have and shall retain sole ownership of all h-Bar Solutions Intellectual Property Rights. All rights not expressly granted by h-Bar Solutions to the Customer under this Agreement are reserved and retained by h-Bar Solutions and its licensors. All customer data is and shall remain the sole and exclusive property of Customer and h-Bar Solutions shall have no right, title or interest in it or responsibility regarding the data’s confidentiality, integrity, or availability. Customer will defend and indemnify h-Bar Solutions and its Affiliates against any third party claim resulting from a breach of the foregoing, or from Customer’s infringement or misappropriation of intellectual property rights of Supplier, its Affiliates or third parties.
Customer Furnished Materials:
Customer retains its Proprietary Rights in materials it furnishes to Supplier for use in connection with the performance of Professional Services. Customer is fully responsible for all materials provided to h-Bar Solutions. Customer grants h-Bar Solutions a non-exclusive, non-transferable right, under Customer’s Proprietary Rights, to use the Customer-provided materials solely for the benefit of Customer in fulfilling h-Bar Solutions obligations.
Customer Responsibilities:
In connection with Support Services or Professional Services (if applicable), at no charge to Supplier, Customer shall: (i) provide Supplier personnel with timely access to appropriate facilities, space, power, documentation, files, data, information, additional software (if needed); (ii) use skilled and authorized Customer personnel to assist and cooperate with Supplier in the provision of the Services as reasonably requested by Supplier; (iii) be responsible for physical and network security and all conditions in its business necessary for due performance of Services; (iv) allow Supplier remote and onsite access to the Products and Customer’s infrastructure environment, as required; and (v) where applicable, promptly notify Supplier when Products fail and provide Supplier with sufficient details of the failure such that the failure can be reproduced by Supplier. For Professional Services, details may be set forth in the SOW. Customer agrees that it will obtain all necessary rights, permissions and consents associated with: (a) technology or data (including personal data) that Customer and its Affiliates provide to h-Barl or its Affiliates, and (b) software or other components that Customer and its Affiliates direct or request that h-Bar or its Affiliates use with, install, or integrate as part of the Supplier’s Offerings. Customer is solely responsible for reviewing data that will be provided to or accessed by h-Bar in the delivery of services to ensure that it does not contain: (i) data that is classified, ITAR (International Traffic in Arms Regulations) related data, or both; or (ii) articles, services, and related technical data designated as defense articles and defense services.
Third Party Products:
h-Bar Solutions may offer to supply Third Party Products that are provided by a third party manufacturer/supplier. Notwithstanding any other provisions herein, such Third Party Products are subject to the standard license, services, warranty, indemnity and support terms of the third party manufacturer/supplier to which Customer shall adhere. Even if support fees are invoiced through h-Bar Solutions, such Third Party Products are not supported by h-Bar Solutions and Customer shall contact such third party directly for support. Any warranty, damages or indemnity claims against Supplier in relation to such Third Party Products are expressly excluded.
Independent Contractor
h-Bar Solutions and Customer expressly agree that h-Bar is an independent contractor as to all Work performed under this Agreement and that h-Bar Solutions, its subcontractors, and anyone employed by either h-Bar Solutions or its subcontractors shall not be deemed for any purpose to be an employee, agent, servant, or representative of Customer. This Agreement does not create, and shall not be construed by the parties hereto or any third party as creating, any agency, partnership, joint venture, or employment relationship between the parties hereto.
Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any of its obligations (other than for the payment of fees) caused by Force Majeure. If such delay or failure lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, the relevant Order by giving written notice to the delayed party. “Force Majeure” refers to circumstances beyond a party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, general import/export/customs process problems affecting supplies to Supplier or to Customer, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Supplier’s workforce or any other party), or default of suppliers or subcontractors due to any of the preceding events.
Waiver & Severability:
Failure to enforce a provision of this Agreement will not constitute a waiver of that or any other provision of this Agreement. If any part of this Agreement or an Order is held unenforceable, the validity of the remaining provisions shall not be affected.
Termination:
Either party may terminate this agreement for convenience by giving written notice to the other party within thirty (30) days in advance of the specified date of termination unless otherwise stated in the SOW. POP dates listed in the SOW are not guaranteed terms of service. A termination of services notice sent via email shall constitute proof of termination. In the case of termination, h-Bar shall be reimbursed for all approved non-cancelable commitments made prior to the effective date of such termination. Regarding a material breach of the contract the other parties, the other parties Project Manager shall be notified. If a remedy is not provided within five (5) days, then the contract can be terminated immediately.
Expiration of Offer:
The pricing set forth above is valid for 30 days from the date on which h-Bar Solutions first presents this SOW to Customer. If h-Bar Solutions and Customer fail to execute the SOW within such time period, h-Bar Solutions’ offer shall be deemed to have been revoked. If Customer still wishes to purchase the Services, Customer may contact h-Bar Solutions to request an SOW. h-Bar Solutions will issue a new draft SOW and h-Bar Solutions reserves the right to present revised pricing in such SOW.
Entire Agreement
This Agreement, the SOWs and each Order hereunder comprise the complete statement of the agreement of the parties regarding the subject matter thereof and may be modified only by written agreement. Pre-printed terms on any Order or any term or condition on a customer form, have no legal effect and do not modify or supplement the Agreement, even if Supplier does not expressly object to those terms when accepting a Customer Order.
