Master service agreement

MASTER SERVICE AGREEMENT

This Master Services Agreement (this “Agreement“), together with any Order Form, is a binding agreement by and between ABM Technology Group, a North Dakota limited liability company, with offices located at 1515 13th Ave E., West Fargo, North Dakota 58078 (“ABM“) and the customer identified in the applicable Order Form (the “Customer“). This Agreement shall be effective upon the date of execution or other acceptance of an Order Form (“Effective Date”). 

1. Services. ABM shall provide to Customer the services (the “Services“) set forth in the Order Form. ABM shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement. Nothing in this Agreement shall prevent ABM from providing the same or similar services to other customers. Any changes to the scope of Services must be agreed by the parties in a written amendment in accordance with Section 11.7; provide that, Customer shall pay for any Services that ABM provides at Customer’s request.

2. Customer’s Obligations

2.1      General. Customer shall (a) provide ABM with access to Customer’s premises, office accommodation, and information technology systems as may reasonably be required by ABM for the purposes of performing the Services; and (b) respond promptly to any ABM request for information or approvals that ABM requires to perform the Services. 

2.2      Third-Party Products. ABM may from time to time make third-party products provided with or incorporated into the Services (“Third-Party Products”) available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

3. Term and Termination.

3.1 Term; Renewal. This Agreement shall commence as of the Effective Date and shall continue thereafter for a period of 30 days (the “Initial Term”). This Agreement shall automatically renew for additional successive 30 day terms (each, a “Renewal Term”). The terms and conditions of this Agreement during any Renewal Term shall be the same as those in effect at the time of renewal. 

3.2 Termination for Convenience. Either party, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing at least 30 days’ prior written notice to the other party. Upon Customer’s notice of termination for convenience, Customer shall be liable for all fees for the entirety of the then-current Term, whether it be the Initial Term or Renewal Term. The fees shall not be pro-rated. 

3.3 Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party“), if the Defaulting Party (a) 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 10 days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.

3.4 Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason, (a) ABM shall, as applicable: (i) return to Customer all Customer-owned property, equipment, or materials in its possession or control; (ii) remove any ABM-owned property, equipment, or materials located at Customer’s locations; and (iii) provide reasonable cooperation and assistance to Customer upon Customer’s written request and at Customer’s expense, in transitioning the Services to an alternate service provider; (b) Customer shall pay any amounts due to ABM; and (c) each party shall return to the other party or destroy, at the other party’s discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating or based on the other party’s Confidential Information and certify in writing that it has done so.

3.5 Survival. The rights and obligations of the parties set forth in this Section 3.5 and Section 3.4, Section 5, Section 6, Section 7, Section 8, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

4. Fees and Expenses; Payment Terms.

4.1 In General. In consideration of the provision of the Services by the ABM and the rights granted to Customer under this Agreement, Customer shall pay the fees as set forth in the applicable Order Form. 

4.2 Training Charges. A per attendee charge for training seats (physical or online) will be billed to the Customer upon Customer’s registration for any class. Costs for training will be the listed retail price unless otherwise agreed to by ABM in writing. Training seats that are cancelled less than five business days from the start of the training course are non-refundable. 

4.3 Other Charges. ABM may charge customer for expenses related to travel requested by the Customer. These expenses include but are not limited to lodging, meals, other travel, mileage, airfare, faxes, and postage. Mileage to and from Customer’s location(s) will be billed at the then-current IRS standard business mileage rate. Other Charges will be billed at the actual expense incurred.

4.4 Non-Business Hours Charges. ABM reserves the right to bill time and one-half (150%) for any time required by Customer to be spent outside the standard hours of operation for ABM, unless the parties agree otherwise in writing prior to the provision of these Services. Standard hours of operation for ABM are Monday through Friday 8:00 a.m. Central Standard Time to 5:00 p.m. Central Standard Time. If the Customer requires Services from ABM on a holiday, time will be billed at two times (200%) the billing rate in effect. The recognized holidays for ABM include New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. 

4.5 Orders. Customer’s payment for hardware, software, software maintenance fees, software development, SaaS, and sales tax may be required to be made before ABM orders hardware, software, or Third-Party Products for Customer. Any software or Third-Party Products ordered, and the associated fees, documentation, and other materials, are non-returnable and non-refundable. ABM is not responsible for price changes or lost discounts on Third-Party Products due to late payments by Customer. In the event of non-payment, Customer agrees that ABM may take any and all actions necessary to stop the further provision of Goods and Services, including contacting applicable Service Providers.

4.6 SaaS Fees; Software Maintenance Fees. SaaS fees are charged in accordance with the terms set out in the applicable SaaS Agreement or other agreement. All payment for annual software maintenance fees must be received by ABM no less than 21 days prior to the expiration of the Customer’s software maintenance plan. ABM shall not be responsible for any penalties or late fees charged to Customer by third-party software providers. Customer agrees to provide written notification to ABM no less than 30 days prior to the lapse of its annual software maintenance fees if Customer chooses not to renew a particular software.

4.7 Invoicing and Payment. ABM shall issue monthly invoices to Customer. Customer shall pay all amounts due to ABM within 30 days after Customer’s receipt of such invoice. All payments hereunder shall be in US dollars and made by ACH or credit card. ABM reserves the right to charge a 3% convenience fee for all credit card payments. Any charges not paid within the stated payment terms of the invoice will bear interest at the rate of one and one-half percent (1.5%) per month.

4.8 Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, ABM’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

5. Intellectual Property.

5.1 ABM IP. Customer acknowledges that, as between Customer and ABM, ABM owns all right, title, and interest, including all intellectual property rights, in and to the Services and any and all intellectual property provided to Customer in connection with the Services. 

5.2 Customer Data. ABM acknowledges that, as between ABM and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer the Services (“Customer Data”). Customer hereby grants to ABM a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ABM to provide the Services to Customer.

6. Confidential Information

6.1 All non-public, confidential or proprietary information of either party (“Confidential Information“), including, but not limited to, information about such party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the “Disclosing Party“) to the other party (the “Receiving Party“), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall 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. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.

6.2 The Receiving Party shall be responsible for any breach of this Section 6 caused by any of its employees, contractors, agents, or representatives. On the expiration or termination of the Agreement, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information. 

7. Representations and Warranties.

7.1 Mutual. Each party represents and warrants to the other party that: (a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

7.2 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, ABM (A) HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ABM DOES NOT AND CANNOT GUARANTEE THE PREVENTION OR OUTCOME OF ANY GIVEN ATTACK OR THIRD PARTY ACT. 

8. Indemnification. Customer (“Indemnifying Party“) shall indemnify, defend, and hold harmless ABM and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (“Indemnified Party“) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs (collectively, “Losses”), relating to any claim of a third party arising out of or occurring in connection with Indemnifying Party’s negligence, willful misconduct, or material breach of this Agreement, including but not limited to material breach of any representation or warranty made by Indemnifying Party in this Agreement.

9. LIMITATION OF LIABILITY. IN NO EVENT WILL ABM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA 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 SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) DIRECT DAMAGES OF MORE THAN THE AMOUNT PAID TO ABM BY CUSTOMER IN THE 3 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  

10. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from events outside of the party’s reasonable control (“Force Majeure Events“), including but not limited to: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The affected party shall resume performance under this Agreement as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.

11. Miscellaneous.

11.1 Independent Contractors. The parties are independent contractors, and 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 them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.

11.2 No Publicity. ABM may issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, that use Customer’s trademarks, service marks, trade names, logos, symbols, or brand names. 

11.3 Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section. 

11.4 Entire Agreement, Order of Precedence. This Agreement, together with all Order Forms, ABM’s Privacy Policy, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Order Form, then the terms of this Agreement shall control unless expressly set forth otherwise in the applicable Order Form.

11.5 Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

11.6 Non-Solicitation. Customer and ABM acknowledge that ABM’s personnel represent a significant investment in recruitment and training and that the loss of such personnel would be detrimental to ABM’s current and future business and profits. Accordingly, in consideration of the foregoing, Customer agrees that for the Term of this Agreement and a period of one year following any termination, it will not directly or indirectly, including without limitation through the use of any third party, without the prior written consent of ABM: recruit, hire, engage or attempt to recruit, hire, or engage any person who shall have been an employee, agent, or consultant of ABM. Customer acknowledges that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to determine the actual damages resulting from such breach. Therefore, in the event Customer violates this provision, Customer shall pay to ABM an amount equal to the annual compensation which such person(s) were earning at ABM, or the total annual compensation which Customer pays such person(s), whichever is greater, as liquidated damages. The amount of such liquidated damages is not intended as a penalty and is reasonably calculated based upon the projected costs ABM would incur to identify, recruit, hire and train suitable replacements for such personnel.

11.7 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

11.8 Amendment and Modification; Waiver. This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No failure to exercise any rights, remedy, power or privilege (“Right(s)”) arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any Right hereunder precludes any other or further exercise thereof or the exercise of any other Right.

11.9 Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of this Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.

11.10 Governing Law: Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of North Dakota without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted in the state or federal courts in North Dakota. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. 

11.11 Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach of Section 5 (Intellectual Property Rights; Ownership) or Section 6 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.

11.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.