This Master Services Agreement (“Agreement”) was last updated September 10, 2021 and defines the general operating agreement between Austin Software (as defined below) and any counterparty entering into an SOW or other ordering document that references this Agreement (“Partner”).
WHEREAS, Austin Software Inc., a Delaware C-corporation, and its affiliated entities in Colombia, Austin Software S.A., and Uruguay, Teorun S.A. (together with its other subsidiaries, affiliates, predecessors, successors and assigns, “Austin Software”) is in the business of staffing technology professionals (“AS Engineer(s)”) for its clients.
WHEREAS, Partner (together with Austin Software, the “Parties”) desires to engage Austin Software to staff AS Engineers for Partner.
NOW THEN, for and in consideration of the mutual promises and covenants herein contained, the Parties agree as follows:
Austin Software will staff its AS Engineers for Partner (the “Services”) as described in any applicable statement of work (“SOW”) entered into between Austin Software and Partner. Any conflict or inconsistency between the provisions of this Agreement and any executed SOW shall be resolved in favor of the SOW.
2. TERM AND TERMINATION
2.1. Term. This Agreement commences on the effective date of the first SOW between the Parties and shall remain in effect until termination or expiration of the last SOW in effect between the Parties (the “Term”). Each SOW will continue until terminated as set forth herein. If an SOW lists a set duration, it will automatically renew on a month-to-month basis until terminated as set forth herein (unless the SOW expressly states that it will not automatically renew). Any SOW may be terminated by either Party upon 14 days’ prior written notice to the other Party. Additionally, Partner may terminate any SOW immediately during the first week of such SOW by giving providing written notice thereof.
2.2. Termination. The terms of this Agreement will continue to apply to any active or outstanding SOWs as of the date of expiration or termination of this Agreement. Upon termination of this Agreement or any SOW for any reason, Partner shall immediately pay to Austin Software all amounts owed to Austin Software pursuant to Section 3 hereof for Services performed up to the effective date of termination. The termination or expiration of this Agreement will not affect any obligations or liabilities accruing prior to such termination or expiration. Sections 2.2, 5, 7.2, 8, 10, 11, 13, and 14 will survive the expiration or termination of this Agreement.
3. FEES & PAYMENT
3.1. Fees. Partner shall pay Austin Software the fees stated in the SOW (the “Fees”). The Fees consist of Salary and Taxes & Fees (each as defined below) and a management fee that Austin Software retains for the Services, each as stated in the SOW.
“Salary” means the AS Engineer’s take-home salary. “Taxes & Fees” means (i) taxes levied by governments where the AS Engineer is located (whether on the AS Engineer’s income or on Austin Software’s engagement of the AS Engineer) and (ii) fees and charges paid by Austin Software for currency conversion, bank transfers, and other operational expenses related to the employment and payment of AS Engineers.
3.2. Time Off. AS Engineers will be entitled to take sick days, vacation days, and government-mandated holidays off, as may be further detailed in the applicable SOW. For avoidance of doubt, Partner will not be charged for any such days the relevant AS Engineer does not work for Partner.
3.3. Automatic Payment. Partner will pay Austin Software by automatic payment as further described herein. Partner will set up a form of automatic payment (EFT, ACH, or CC, the “Automatic Payment”) and hereby authorizes Austin Software to charge the Automatic Payment on a weekly basis in arrears (on Friday) for each week’s work.
3.4. Declined Automatic Payment. If Partner’s Automatic Payment is declined, Partner will pay the outstanding invoice within seven (7) days of the declined payment, plus a 5% late fee that will increase by 5% every 30 days until payment is made in full. Austin Software reserves the right to immediately cancel this Agreement or any SOW, or suspend services, upon failed Automatic Payment.
3.5. Annual Salary Increase. To remain competitive in the marketplace and retain qualified talent, Austin Software’s standard practice is to increase the Salary for AS Engineers by up to 10% each January. Austin Software will notify Partner of any such proposed increase at least 90 days in advance. Partner may elect to increase the Salary by more or less than 10% by notifying Austin Software of such decision at least 60 days before the end of the relevant calendar year.
3.6. Tax and Fee Changes. The Taxes & Fees are billed through to Partner as transparent costs that Austin Software incurs on behalf of Partners to legally pay AS Engineers in their local countries. Because of their nature, these costs may change from time to time (e.g., based on changes in local laws and regulations) and the corresponding fees will be adjusted to account for any such changes.
Austin Software shall use reasonable efforts to provide the Services through the same AS Engineer(s) for the duration of a SOW. Austin Software may remove an AS Engineer for cause, and AS Engineers may from time to time voluntarily end their relationship with Austin Software. In such event, Austin Software will have the right (but no obligation) to replace such AS Engineer with another AS Engineer of substantially similar qualification and experience. If Austin Software is unable to find a suitable replacement on the same terms, Partner’s sole remedy will be to terminate the SOW and, if desired, enter into a new SOW for a replacement resource.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Definitions. “Deliverables” means any work product or deliverables created by AS Engineers in the course of work for Partner hereunder. “Background Materials” means any developments or intellectual property owned by Austin Software or AS Engineers prior to the start of the SOW or subsequently acquired or developed by Austin Software or any AS Engineer outside of the scope of any work for Partner hereunder.
5.2. Ownership of Deliverables. Subject to timely payment of any applicable fees hereunder, Austin Software hereby assigns and will automatically assign to Partner all right, title, and interest in and to all Deliverables, including all copyrights therein. To the extent permitted by copyright laws, all Deliverables will be considered “works made for hire” owned by Partner. Background Materials will remain owned by Austin Software, but to the extent any Background Materials are included in any Deliverables, Austin Software hereby grants Partner a non-exclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use such Background Materials as incorporated in the Deliverables.
5.3. Partner Materials. Partner shall retain ownership of all content and materials (including, without limitation, graphics, audio, copy text, video, and images) provided by it hereunder (“Partner Materials”). Partner is responsible for, and represents and warrants that it has the right to provide, any Partner Materials it provides for use in the Services and Deliverables.
Partner shall be responsible for any and all taxes levied on its receipt of Services under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on Austin Software’s net income. In the event that Austin Software is required at any time to pay any tax for which Partner is responsible, Partner shall promptly reimburse Austin Software for such payments, subject to the provision to Partner of supporting documentation evidencing such payments.
7.1. Warranties. Austin Software represents and warrants that: (a) it has full authority to enter into this Agreement and to consummate the transactions contemplated hereby; (b) this Agreement is not in conflict with any other agreement to which Austin Software is a party or by which it is bound; (c) each AS Engineer assigned under an SOW shall have appropriate skills, training and background for his or her level of competence as specified in the SOW, so as to be able to perform in a competent and professional manner; and (d) unless otherwise specified in an SOW (and excluding any Partner Materials), the Deliverables will constitute original work of the applicable AS Engineer(s).
7.2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, ALL DELIVERABLES AND SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS”, AND “AS AVAILABLE” BASIS AND AUSTIN SOFTWARE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT ANY SERVICES OR DELIVERABLES WILL BE COMPLETE, ACCURATE, OR ERROR-FREE. AUSTIN SOFTWARE DOES NOT GUARANTEE ANY PARTICULAR RESULTS FROM USE OF THE DELIVERABLES, AND PARTNER WILL BE SOLELY RESPONSIBLE FOR ITS TESTING, MODIFICATION, USE, DISTRIBUTION, AND RELIANCE ON ANY DELIVERABLES.
8. LIMITATION OF LIABILITY
Except for liabilities resulting from either Party’s intentional misconduct, each Party’s liability hereunder shall not exceed the fees paid or payable by Partner within the one-year period immediately preceding the date that the alleged wrongful act first occurred. NEITHER PARTNER NOR AUSTIN SOFTWARE SHALL BE LIABLE TO ONE ANOTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND OR ANY LOST OR IMPUTED PROFITS ARISING OUT OF THIS AGREEMENT OR ANY AGREED UPON SOW OR ITS TERMINATION, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. EACH PARTY HERETO WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY.
9.1. Scope. Each Party shall indemnify, defend, and hold harmless the other Party, its affiliates, and their respective directors, officers, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees) incurred in connection with any third-party claim to the extent arising from or relating to the indemnifying Party’s: (a) breach of any provision of this Agreement or any SOW or (b) violation of any applicable law.
9.2. Procedure. As a condition to these indemnification obligations, a Party seeking indemnification hereunder must: (i) provide the indemnifying Party prompt notice of the assertion of any claim, (ii) permit the indemnifying Party to assume the full control of the defense and/or settlement thereof, and (iii) cooperate with the indemnifying Party in defending or settling such claim. Notwithstanding the foregoing, an indemnifying Party shall not enter into a settlement which would affect any rights of the indemnified Party without such indemnified Party’s prior written consent, which may not be unreasonably withheld.
10.1. Definition. “Confidential Information” means any non-public information that is either identified as confidential information at the time of disclosure or should otherwise be reasonably understood to be confidential based on the nature of the information or circumstances of the disclosure, and may include a Party’s business, technical, and financial information such as source code and documentation for software, trade secrets, know how, customer lists, vendor information, pricing strategies, marketing and business plans, and the terms of this Agreement and each SOW. Confidential Information does not include: (a) information that is in the public domain prior to disclosure to the receiving Party, or becomes part of the public domain through no wrongful act of the receiving Party; (b) information that was in lawful possession of the receiving Party prior to the disclosure by the other Party; (c) information that was independently developed by the receiving Party without use of any Confidential Information of the other Party, or (d) information that was disclosed to the receiving Party by a third party who was in lawful possession of the information.
10.2. Protection. The receiving Party will hold the other Party’s Confidential Information in confidence using at least the same degree of care it uses to protect its own sensitive information, and in no event less than reasonable care. The receiving Party will: (a) only use the other Party’s Confidential Information to fulfill its obligations or exercise its rights in connection with this Agreement or any SOW, and (b) not disclose the other Party’s Confidential Information except to its personnel and agents who have a “need to know” in connection with this Agreement or such SOW and who are bound by reasonable obligations of confidentiality regarding such information. A Party may disclose Confidential Information to the extent required by law, provided it shall reasonably cooperate with the other Party (at the other Party’s request and expense) so that the other Party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
11. NO EXCLUSIVITY
This Agreement is non-exclusive, meaning: (a) Austin Software and its affiliates may provide similar services to any third party, including competitors of Partner; and (b) Partner and its affiliates may obtain similar services from any third party (subject to Section 13 below), including competitors of Austin Software.
12. NON-SOLICIT; NON-INTERFERENCE
12.1. Non-Solicit. Partner acknowledges that Austin Software invests significant resources in identifying, recruiting, training, and retaining AS Engineers. During the Term and for one year thereafter (the “Restricted Period”), Partner shall not directly or indirectly solicit, hire, or engage any AS Engineer (other than under this Agreement) without Austin Software’s express written consent. A hiring fee equivalent to fifty-two (52) weekly Fees will apply to any hiring of an AS Engineer by Partner during the non-solicit period described above, unless such fee is expressly waived or modified by Austin Software in writing and in its sole discretion.
12.2. Non-Interference. During the Restricted Period, Partner shall not induce or attempt to induce any customer, client, vendor, or supplier of Austin Software to cease, or reduce its level of, engagement with Austin Software.
13. FORCE MAJEURE
Neither Party will be liable for any failure or delay in performance of any obligation (other than payment obligations) due to causes beyond such Party’s reasonable control, including the elements, acts of God, labor disputes, acts of the public enemy and/or terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power systems, sabotage, armed hostilities and riots.
14.1. Relationship of the Parties. The Parties are independent contractors, and no fiduciary, agency, partnership, joint venture, or employment relationship is created or will be implied as a result of this Agreement. Partner does not have any authority to bind Austin Software in any respect whatsoever as relates to any third parties.
14.2. Publicity. Each of Austin Software and Partner may use the name and logo of the other Party in commercially reasonable marketing, advertising and/or publicity releases, so long as the relationship between the Parties is accurately portrayed.
14.3. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.4. Assignment. This Agreement is not assignable, transferable or sublicensable by Partner except with Austin Software’s prior written consent. Austin Software may transfer and assign any of its rights and obligations under this Agreement without consent.
14.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
14.6. Governing Law; Mandatory Arbitration. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any dispute arising out of this Agreement will be settled exclusively through binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The location of the arbitration will be reasonably agreed by the Parties. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened breach of confidentiality. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
14.7. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
14.8. Electronic Signature; Counterparts. SOWs hereunder may be executed by electronic signature, and in counterparts, each of which shall be deemed to be an original, but all such counterparts shall constitute one and a single instrument. Execution of any SOW referencing this Agreement will constitute acceptance of the terms and conditions of this Agreement.