This Master Services Agreement (“Agreement”) was last updated 20 January 2021 and defines the general operating agreement between Austin Software and Partner.
WHEREAS, Austin Software Inc., a Delaware C-corporation, and it’s 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 and training technology professionals, known as “AS Engineer(s)”.
WHEREAS, the 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 agrees to staff its AS Engineers for Partner (the “Services”) as described in one or more Statements of Work (“SOW”) and the Order Form. Any conflict or inconsistency between the provisions of this Agreement and any executed SOW or Order Form shall be resolved in favor of the Order Form, SOW and Agreement, in that order.
2. TERM AND TERMINATION
1. Term. This Agreement shall remain in effect and govern Services provided to Partner by Austin Software until this Agreement is terminated, or the Parties agree otherwise (the “Term”). This Agreement may be terminated by either Party upon 14 days’ prior written notice to the other Party. During the initial term of each SOW, such SOW may be terminated at no cost to Partner within the first week, or upon 14 days’ prior written notice thereafter. After the initial term, each SOW shall automatically renew for additional one month periods until either Party terminates such SOW upon at least 14 days’ notice.
2. Termination. Upon termination of this Agreement for any reason, Partner shall immediately pay to Austin Software all amounts owed to Austin Software pursuant to Section 3 hereof for Services performed prior to termination. For the avoidance of doubt, termination of this Agreement shall not affect rights and/or obligations of the Parties which arose prior to any such termination, including without limitation warranties, indemnities, limitations of liability, which by their nature extend beyond the expiration or termination of this Agreement (unless otherwise provided in applicable SOWs) and such rights and/or obligations shall survive any such termination.
3. FEES & PAYMENT
1. Fees. Partner shall pay Austin Software fees that include: (i) the take-home salary for each AS Engineer (the “Salary”), (ii) employee taxes & fees that the AS Engineer is required to pay in their local country (the “Employee Taxes & Fees”), (iii) corporate taxes & fees set by local governments where the AS engineer is located (the “Corporate Taxes & Fees”), and (iv) a management fee percentage that Austin Software collects (the “Management Fee”), all set forth in applicable SOWs and each weekly invoice (collectively the “Fees”). Partner only pays for days worked by AS Engineer, and does not pay for sick days or government-required days off. All Fees are due and payable immediately by Partner on a weekly basis via Automatic Payment as described in 3(B).
2. Automatic Payment. Partner agrees to set up a form of automatic payment (EFT, ACH, or CC, the “Automatic Payment”) that will be charged by Austin Software every Friday following the completion of one weeks’ worth of work.
For example, Week 41 out of 52, Resource A works Monday, Oct. 7 2019 through Friday, Oct. 11, 2019, Partner is automatically charged for resources on Friday, Oct. 11, 2019 for Week 41.
3. Declined Automatic Payment. If Partner’s Automatic Payment is declined, then Partner agrees to pay all outstanding invoices within seven (7) days of declined payment, plus a 5% late fee that increases by 5% for each month that the payment is late. Austin Software reserves the right to immediately cancel any agreement suffering failed Automatic Payment.
4. Annual Salary Increase. Unless otherwise directed by Partner sixty (60) days in advance, every January the AS Engineer’s Salary may increase by up to 10%. At this time, Partner may elect to increase the Salary more or less. Additionally, Partner may increase the AS Engineer’s Salary at any time through a new SOW. Austin Software will always give Partner ninety (90) days’ notice before any such increase.
5. Fee Changes. Fees that fall into Employee Taxes & Fees and Corporate Taxes & Fees are billed through to the 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 fees may change from time to time and will be updated in both the SOW and weekly invoice.
4. STAFFING, PERSONNEL, & SCHEDULE
Austin Software shall use reasonable efforts to provide the Services through the same personnel for the duration of a SOW. In the event of a misdeed or wrongdoing on behalf of the AS Engineer, to either Austin Software or Partner, Austin Software shall be entitled to replace such personnel with personnel of equivalent qualification and experience to Partner.
5. INTELLECTUAL PROPERTY RIGHTS
1. All copyrights in any deliverables delivered pursuant to an SOW (“Deliverable”) or arising out of the Services performed by AS Engineers will become the property of Partner upon full payment of all amounts due and owing. Contingent on such payment, Austin Software hereby assigns to Partner, or its designee, all rights, title and interest of Austin Software in and to any and all such copyrights throughout the world. Austin Software shall retain any of its pre-existing intellectual property rights and any residual rights provided that to the extent any such intellectual property rights are embodied in the Deliverables, Austin Software hereby grants Partner a non-exclusive, world-wide license to use such intellectual property rights to the extent necessary for the use of the Deliverables.
2. Partner shall retain ownership of all content and materials provided to Austin Software hereunder. Partner takes full responsibility for any content (including, without limitation, graphics, audio, copy text, video, and images) provided to Austin Software to be used in its project. Partner represents and warrants that it has full rights to exploit all content and materials provided to Austin Software or AS Engineers.
Partner shall be responsible for any and all taxes levied on any transaction 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.
Austin Software warrants and represents that it has full authority to enter into this Agreement, to consummate the transactions contemplated hereby, and that this Agreement is not in conflict with any other agreement to which Austin Software is a Party or by which it is bound. Austin Software warrants and represents further:
1. Each of its AS Engineers assigned to perform any part of the provisions of the Services under a SOW shall have the proper 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;
2. Partner shall receive good and marketable title to all copyrights in original materials included in any Deliverables, developed under this Agreement, unless otherwise specified in an SOW, free and clear of all liens, claims, encumbrances and security interest whatsoever of a third Party;
3. Unless expressly set forth in an SOW, all Deliverables and Services provided by Austin Software to Partner by its staff are delivered or provided “as is” and “where is” and may or may not be error-free; and
4. AUSTIN SOFTWARE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND EXCEPT AS EXPRESSLY PROVIDED HEREIN. SPECIFICALLY, AUSTIN SOFTWARE DISCLAIMS ALL GUARANTEES, REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING), RELATING SOMEHOW TO THE SERVICES, THIS AGREEMENT OR AN SOW.
8. LIMITATION OF LIABILITY & DAMAGE EXCLUSIONS
Except for liabilities resulting from either Party’s actual intentional and/or willful 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.
Partner shall indemnify Austin Software, and our directors, officers, affiliates, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees), and defend Austin Software in any suit, claim, or proceeding brought by any third Party or governmental agency, arising from or relating to Partner’s breach of any provision of this Agreement or any applicable SOW, and/or Partner’s violation of any applicable law or regulation. Austin Software agrees to indemnify Partner, and Partner’s directors, officers, affiliates, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys’ fees), and to defend Partner in any suit, claim, or proceeding, brought by any third Party or governmental agency, arising from Austin Software’s breach of any provision of this Agreement or any applicable SOW or Austin Software’s violation of any applicable law or regulation. In consideration of these indemnification obligations, each Party must provide the indemnifying Party prompt notice of the assertion of any claim and permit the indemnifying Party to assume the full control of the defense and/or settlement thereof. 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.
In connection with entering into and performing under this Agreement and each SOW, each Party may receive or have access to commercially valuable technical and nontechnical confidential or proprietary information of the other Party (including confidential or proprietary information of a third party), including information in whatever form, relating to the business of such Party that is not generally known or available to others, including but not limited to, source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, payment terms, the terms of this Agreement and each SOW, marketing and business plans, information concerning such Party’s vendors, and such Party’s contemplated plans, strategies and prospects (“Confidential Information”). Except as expressly and unambiguously provided herein or in any agreed upon SOW, the receiving Party will hold in confidence and not disclose any Confidential Information of the disclosing Party and will similarly bind its employees. Each Party acknowledges and agrees that any Confidential Information received or obtained from the other Party will be the sole and exclusive property of the other Party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement, any agreed upon SOW or as may be required by law. If disclosure is required by law, the Party required to disclose Confidential Information 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. Notwithstanding the foregoing, Confidential Information does not include: (a) information that is in the public domain prior to the disclosure 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; (c) information that was independently developed by the receiving Party outside the scope of this Agreement, or (d) information that was disclosed to the receiving Party by a third party who was in lawful possession of the information.
11. NO EXCLUSIVITY
Austin Software’s Services, including but not limited to as such are described under the terms of this Agreement, are not and shall not be deemed to be exclusive to Partner nor to Partner’s affiliates. Austin Software is and shall remain free to render similar services to other entities, and to engage in all such activities as Austin Software deems appropriate, provided that in doing so Austin Software does not breach any covenants or obligation expressly set forth in this Agreement. Austin Software shall not have any duty or obligation to disclose to Partner any confidential or proprietary information that Austin Software may acquire about the business, operations or activities of any other person or entity, even if such information could be deemed material and relevant information to Partner.
12. PUBLICITY & REFERENCES
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, and describe work completed under this Agreement and any related SOW in summary and general form, without revealing any of the other party’s confidential information so long as the relationship between the Parties is accurately portrayed, without securing additional written approval of the other Party.
Partner acknowledges that Austin Software invests significant resources in its AS Engineers. During the Term and for one year thereafter, Partner shall not solicit or hire any personnel, or otherwise engage any personnel (except through Austin Software), without Austin Software’s express written consent, which may be withheld or conditioned in Austin Software’s sole discretion.
14. HIRING FEE
In the event Partner wishes to directly hire any AS Engineer, in conjunction with an acquisition or for any other reason, Partner shall pay a hiring fee to Austin Software equivalent to fifty-two (52) weekly Fees (the “Hiring Fee”). At Partner’s inclination, and in conjunction with the Hiring Fee, Austin Software will assist Partner in setting up a local entity for the purposes of legally retaining the AS Engineer in their local country.
15. EXCUSABLE DELAY
Neither Party will be liable for any failure to perform 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. Notwithstanding the foregoing, in every case the delay or failure to perform must be beyond the control and without the fault or negligence of the Party claiming excusable delay. Performance times under this Agreement shall be considered extended for a period of time equivalent to the time lost because of any delay which is excusable hereunder; provided, however, that, if any such delay shall, in the aggregate, last for a period of more than 60 days, the Party not relying on the excusable delay, at its option, may terminate the SOW involved.
16. DATA PROCESSING AGREEMENT
If either (i) Directive 94/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”), or (ii) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”), are applicable to the Services provided by Austin Software, then the terms found at https://Austin Software.com/dpa shall be incorporated herein, and Partner shall be considered the “Controller” and Austin Software shall be considered the “Processor”.
During the Term and for one year thereafter, Partner shall not induce or attempt to induce any customer, client, vendor, or supplier of Austin Software to cease, or reduce its level of, doing business with Austin Software. To the extent that Austin Software in rendering Services is to have a fiduciary or other similar duty to Partner beyond the specific covenants and agreements set forth in this Agreement, such fiduciary or other similar duties must be expressly set forth and referenced on the SOW. Absent express language creating a fiduciary relationship, nothing in this Agreement (or otherwise arising from the delivery or receipt of goods or services) shall operate or be construed to operate to create any fiduciary duties on the part of Austin Software. 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. 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. 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Partner does not have any authority of any kind to bind Austin Software in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. This Agreement 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.