Master Services Agreement
This Master Services Agreement (this “Agreement”) entered into by and between the client identified in the applicable Invoice (“Customer”) and Los Angeles Tech Hero (“LATH”) governs Customer’s purchase of the Services. By accepting this Agreement, or by executing an Invoice that references this Agreement, Customer agrees to the terms of this Agreement. If an individual is entering into this Agreement on behalf of a company or other legal entity, Customer represents that the individual has the authority to bind such Customer to these terms and conditions. If you do not have such authority or if you do not agree with these terms and conditions, you must not accept this Agreement or use the Services. This Agreement was last updated on October 29, 2020. It is effective between Customer and LATH the date the applicable Invoice is executed by Customer. LATH and Customer are each referred to herein as a “Party,” and collectively as the “Parties.”
1. ORDERING.
LATH offers various products and services (each, a “Service”) that may be purchased on a one-time or subscription basis. LATH reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of LATH’s Services to its customers; (ii) the competitive strength of or market for the Services; or (iii) the Services cost efficiency or performance; or (b) to comply with applicable law. The specific Services purchased by Customer and made available by LATH will be identified in one or more separate, written ordering documents that are entered into by both Parties and reference this Agreement (each, a “Invoice”).
Each Invoice will set forth:
a) the Service(s) Customer is purchasing from LATH;
b) the start date and end date;
c) the fees Customer will pay LATH for the Service(s), and the payment terms; and
d) other terms applicable to such Service(s) (for example, number of devices, total subscriptions, usage restrictions, Service-specific terms, etc.).
To the extent any provision of an Invoice conflicts with any provision set forth in this Agreement, the provision set forth in the Invoice will control.
2. Fees and Payment.
2.1 Fees. For each Service, Customer will pay LATH the applicable fees in the amounts, and in accordance with the payment terms, set forth on the applicable Invoice. Fees do not include any taxes, levies, duties or similar governmental assessments, including, for example, value-added, sale, use or withholding taxes assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying any Taxes associated with its purchases hereunder. If LATH has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, LATH will invoice Customer and Customer will pay that amount unless Customer provides LATH a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, LATH is solely responsible for taxes assessable against it based on its income, property and employees. Purchased subscription Service(s) may not be cancelled and all fees paid are non-refundable.
2.2. Late Payment. Late payments will bear interest at the rate of three percent (3.0%) of the outstanding balance per month or the maximum amount permitted by law, if lower. If any amount owing by Customer is overdue, LATH may, without limiting its other rights and remedies, suspend Customer’s access to, and receipt of, the Service(s) until such amounts are paid in full or terminate this Agreement pursuant to Section 3.2 (“Termination”).
3. Term, Termination, and Effect.
3.1. Term. The term of this Agreement begins on the Effective Date and shall continue, with respect to any Invoice, for as long as such Invoice remains in effect (the “Term”).
3.2. Termination. Either Party may terminate an Invoice upon thirty (30) days prior, written notice to the other Party if the other Party commits a material breach of such Invoice (or of this Agreement); provided, however, that such Invoice will not terminate if the other Party cures such breach by the end of the thirty (30) day period. In the event Customer terminates an Invoice for LATH’s uncured material breach in accordance with the previous sentence, Customer would be entitled to a pro rata refund of any prepaid, but unused, fees for the remaining portion of the Term of such Invoice following such termination. In addition, LATH may terminate any Invoice upon notice to Customer if LATH reasonably believes that Customer is engaging in any business or conduct that may be illegal, fraudulent, tortious.
3.3. Effects of Termination. Upon expiration or termination of the Agreement for any reason: (a) any amounts owed to LATH under this Agreement including any Invoice(s) issued before such termination will be immediately due and payable; (b) LATH reserves the rights in its sole discretion to disable all access to the Services, using any lawful means; and (c) Customer shall immediately cease any and all use of the Services.
4. Customer Responsibilities.
Customer shall provide LATH with all appropriate information concerning, and reasonable access to, Customer's computer systems and provide all information, access and full, good faith cooperation reasonably necessary to facilitate the Services. If Customer fails or delays in its performance of any of the forgoing, LATH shall be relieved of its obligations hereunder to the extent such obligations are dependent on such performance.
5. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants it has the authority and power to enter into and perform, and to make all representations, warranties and grants, under this Agreement. LATH represents and warrants it will perform the Services: (a) in a good, timely, efficient, professional and workmanlike manner; (b) using LATH personnel who are familiar with the technology, processes, and procedures used to deliver the Services; and (c) in compliance and in accordance with the provisions of this Agreement and the applicable Order Form. LATH’s sole liability (and Customer’s exclusive remedy) for any breach of the foregoing warranties shall be for LATH to re-perform and/or provide any deficient Services, or, if LATH is unable to remedy such deficiency within thirty (30) days after receiving notice from Customer, to void the applicable Invoice(s) for the deficient Services. LATH shall have no obligation with respect to a warranty claim: (i) if notified of such claim after the Warranty Period (as defined in the applicable Invoice); or (ii) if the claim is the result of third-party hardware or software, the actions of Customer or some other party, or is otherwise caused by factors outside the reasonable control of LATH.
6. Disclaimer.
THE EXPRESS WARRANTIES IN SECTION 5 ARE THE EXCLUSIVE WARRANTIES OFFERED BY LATH AND ALL OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY, ANY WARRANTIES REGARDING THE PERFORMANCE OF ANY SOFTWARE OR HARDWARE PROVIDED OR INSTALLED BY LATH, AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD. LATH DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR completely SECURE.
7. LIMITATIONS ON LIABILITY.
LATH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO BUSINESS REPUTATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF GOODWILL, LOST OPPORTUNITY, LOSS OF EARNINGS, LOST REVENUE, LOST PROFITS, LOST DATA, OR INCREASED EXPENSE OF USE THAT CLIENT OR ANY THIRD PARTY INCURS), WHETHER IN AN ACTION UNDER THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF LATH HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH LIABILITIES. LATH IS NOT RESPONSIBLE FOR ISSUES THAT OCCUR AS A RESULT OF USE OF ANY THIRD-PARTY SOFTWARE OR HARDWARE NOT PROVIDED BY LATH. IN NO EVENT WILL THE AMOUNT CLIENT MAY RECOVER UNDER THIS AGREEMENT EXCEED THE TOTAL FEES ACTUALLY PAID TO LATH BY CLIENT UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD immediately preceding THE DATE THAT SUCH LIABILITY FIRST ARISES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF LATH.
8. Confidentiality.
Each Party acknowledges that, during the Term, it will receive information from the other Party that is highly confidential and proprietary, including but not limited to information concerning such Party’s business, marketing, financials, operations, and/or the Services (“Confidential Information”). Neither Party shall, either directly or indirectly, divulge, disclose or communicate, exploit, duplicate, publish, or otherwise reveal or make available to any third party, the Confidential Information of the other, whether delivered electronically or in writing, or obtained through observation of such other Party’s business. Each Party agrees to hold Confidential Information of the other in strict confidence, exercising the same standard of care as it uses to protect its own confidential information, but no less than a commercially reasonable standard of care. The Parties recognize that a breach of this Section will result in irreparable harm for which monetary damages would not be adequate. In the event of such breach, and without limiting the right of a Party to seek any other remedy or relief to which it may be entitled under law, each Party agrees that the other is entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.
9. Ownership.
Each Party acknowledges and agrees that the other Party retains exclusive ownership and rights in its trade secrets, inventions, copyrights and all other intellectual property of such other Party, and that LATH shall own all right, title and interest in and to all ideas, concepts, and inventions and all intellectual property rights related thereto that LATH may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess any of LATH’s servers or other hardware, and has no right of physical access to the hardware.
10. CLIENT DATA.
Customer retains all rights in any data, or information that Customer provides to LATH as part of the Services (“Customer Data”). Customer shall have sole responsibility for the accuracy, reliability, appropriateness, ownership, and right to use Customer Data. LATH will not engage any third party to process Confidential Information under this Agreement without: (i) a contractual relationship with such third party which includes equivalent information security controls, data privacy and confidentiality requirements as those set forth under this Agreement; (ii) performing and documenting a risk analysis to ensure that the processing of Confidential Information by such third party will not compromise LATH’s obligations under applicable laws; and (iii) performing a privacy and information security due-diligence assessment of such third party’s privacy and security practices to ensure compliance with the requirements set forth in this Agreement. LATH’s obligation to retain Customer Data expires at the end of the Term. Within thirty (30) days of the end of the Term and upon written request from Customer, LATH will provide Customer Data in a .csv file or other mutually agreed upon file format.
11. MISCELLANEOUS.
Independent Contractors. The Parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
Force Majeure. Each Party will be excused from any delay or failure in performance hereunder (except for a failure to pay Fees) caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquakes, labor disputes, strikes, riots, war, viruses, and governmental requirements (each a “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 equal to that of the underlying cause of the delay, insofar as: (i) such event prevents or delays the affected Party from fulfilling its obligations; and (ii) such Party is not able to prevent or remove the Force Majeure Event at a reasonable cost
Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to California conflict of laws rules The exclusive venue and jurisdiction for any and all disputes, claims, and controversies arising from or relating to this Agreement shall be the state or federal courts located in Alameda County, California. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens, or otherwise) to the exercise of such jurisdiction over it by any such courts. Except for a claim of payments of amounts due, no action, regardless of form, arising out of this Agreement may be brought by either Party against the other more than one (1) year after the cause of action has arisen.
Waiver and Severability. Waiver or failure by either Party to exercise in any respect any right provided for in the Agreement will not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement will continue in full force and effect.
Entire Agreement. This Agreement includes any applicable Invoice(s) and any Services descriptions attached thereto. Collectively, the foregoing constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by LATH. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by both Customer and LATH.
No Third Party Beneficiary. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and its successors and assigns. No other person or entity is an intended third party beneficiary of, or shall be deemed to be a third party beneficiary of, any of the terms and conditions of this Agreement.
Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any part thereof.
Counterparts. This Agreement may be executed in counterparts, and each counterpart shall be deemed an original, and all such counterparts together shall constitute but one agreement.
Notices. All notices, consents, and approvals under this Agreement must be delivered in writing via email (to the address specified on the applicable Invoice), courier, or certified or registered mail, (postage prepaid and return receipt requested) to the other Party at its main corporate headquarters
Electronic Signature. The Parties agree that the electronic signature of a Party to an Invoice shall be as valid as an original signature of such Party and shall be effective to bind such party to an Invoice. The Parties agree that any electronically signed document (including, for example, a Invoice, whether signed through DocuSign or by providing a scan of the signed document) shall be deemed (a) to be “written” or “in writing,” (b) to have been signed and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. For the avoidance of doubt, the Parties agree that any formal “Los Angeles Tech Hero” Invoice submitted by LATH to Customer shall become binding (along with this Agreement) solely upon execution of the Invoice by Customer (i.e. LATH’s signature is not required).