This Master Agreement (“Agreement”) dated as of the Effective Date set forth below is between Client, with its principal place of business at the address set forth on the signature page, and McCracken Group, Inc. (“McCracken”) with its principal place of business at the address set forth on the signature page.
In consideration of the mutual agreements, covenants and other premises set forth herein, the mutual benefits to be gained by the performance thereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, the parties hereby, intending to be legally bound, agree as follows:
1. Work Order(s) (“SOW”). All of the SOW’s attached hereto are by this reference incorporated and made a part hereof.
“Aggregated Anonymous Data” means the Client information which is aggregated in an anonymous manner.
- “Client Data” means all data or information submitted by or on behalf of Client to McCracken in order to provide the Services.
- “Fees” means the amount(s) Client will pay McCracken for performing the corresponding Service(s) as described in the attached SOW(s).
- “SOW” or means a description and fee schedule for specific services covered by this Agreement.
- “Service(s)” means work performed by McCracken on behalf of Client as described in the attached SOW(s).
- “Telecommunications Services” shall mean all services defined in the attached SOW(s).
3. Duties and Responsibilities of McCracken. McCracken’s duties and responsibilities are set forth in the attached SOW(s).
4. Method of Performing Services. McCracken shall have the exclusive right to determine the methods, details, and means of performing the work to be performed for Client. Client shall have no right to, and shall not, control the manner or determine the method of accomplishing McCracken’s services. Client may, however, require McCracken personnel at all times to observe security and safety policies of Client. In addition, Client shall be entitled to exercise broad general power of supervision and control over the results of work performed by McCracken’s personnel to assure satisfactory performance, including the right to inspect, the right to stop work, the right to make suggestions or recommendations as to the details of the work, and the right to propose modifications to the work.
5. General Duties and Responsibilities of Client. It is the Client’s objective to gain a better understanding of its current telecommunication assets, services, and charges. To that end, Client shall provide McCracken with access to the Client’s telecommunications and/or wireless services and provide appropriate resources (e.g. telephone service, access to contracts and invoices, access to appropriate personnel, work space and support) as may be required in order for McCracken to perform its services. In addition to any duties defined in the SOW(s) attached, below is a list of general responsibilities of the Client.
Client, hereby, agrees to all of the following:
- To use its best efforts to provide McCracken with all requested information in order that McCracken may utilize this information for the sole purpose of fulfilling its obligations under this Agreement. This information may include but not be limited to web portal username(s) and password(s), bill copies, invoices, telephone numbers, fax numbers, modem numbers, toll-free numbers, circuit ids, LEC circuit ids, contracts, people, space and location.
- To work in good faith with McCracken in order to ensure a seamless conversion and/or renewal for selected telecommunications or technology provider(s).
- To work in good faith with McCracken to notify and to collaborate with McCracken in resolving any billing issues with their provider(s).
- To provide to the best of their knowledge, accurate information for all requested items from McCracken.
- To sign all Letter of Agency (LOA) documents stating that Client has elected to make McCracken their Agent of Record for said selected telecommunications and technology provider(s).
6. Representations and Warranties. Client represents and warrants to McCracken that during and after the term of this Agreement: (a) it has all the necessary right, power and authority to enter into this Agreement and to perform this Agreement; (b) it acknowledges that its ability to access and use the Services may require the payment of third party fees (such as telephone toll charges, ISP or airtime charges); (c) it is responsible for such fees and McCracken is not responsible for any equipment or third party service Client may need to access and use the Services; (d) the Services are for the sole use of processing Client’s own business requirements and not for any other party; (e) without McCracken’s prior written consent, the Services may not be shared with an affiliate or a third party or used in a timeshare or service bureau basis or hosted, on a subscription basis or otherwise, or used to utilize any functionality of the Services for a third party; and (f) the method and means of providing the Services shall be under the exclusive control, management, and supervision of McCracken.
7. Ownership. McCracken owns all right, title and interest in the Services and any future modifications, changes, enhancements, conversions, upgrades or additions to the Services are and shall be the sole and exclusive property of McCracken, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto. Client retains ownership of its Client Data.
All work product(s) arising from services performed by McCracken shall be considered work(s) created by McCracken and shall belong exclusively to McCracken and its designees. If by operation of law any of the work product, including all related intellectual property rights, is not owned in its entirety by McCracken automatically upon creation thereof, then Client agrees to assign, and hereby assigns, to McCracken and its designees the ownership of such work product, including all related intellectual property rights. Notwithstanding anything above to the contrary, any routines, libraries, tools methodologies, processes or technologies created, adapted or used by McCracken in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”) shall be and remain the sole property of McCracken, and Client shall have no interest in or claim to such Development Tools except as necessary to exercise its rights in the work product. In addition, notwithstanding any provision of this Agreement to the contrary, McCracken shall be free to use any ideas, concepts or know-how developed or acquired by McCracken during the performance of this Agreement to the extent obtained and retained by McCracken’s personnel as impressions and general learning.
8. Term. This Agreement shall commence on the date first written above and unless terminated as provided herein, shall remain in full force and effect until the completion of the third full calendar year (“Initial Term”). The Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”) and at the same rate structures unless either party provides written notice to the other party ninety (90) days prior to the expiration of the Initial Term or any Renewal Term. The Services will be provided for the term specified in the respective SOW(s). Notwithstanding the foregoing, Client may terminate the Agreement with ninety (90) days written notice prior to the end of the Initial Term without any liability financial or otherwise. If Client does not exercise this right, then the Agreement shall remain in full effect until the end of the third (3rd) calendar year.
9. Termination. Unless the other party has cured such terminating event, either party shall have the right to terminate this Agreement or any addendum after thirty (30) days prior written notice to the other party upon: (a) violation or material breach by the other party, its officers or employees of any provision of this Agreement; (b) the termination of the business of the other party; (c) voluntary or involuntary filing of a bankruptcy petition or similar proceeding under state law with respect to the other party where the result is the party not being able to meet its obligations under the agreement; or (d) the other party becoming insolvent or making any assignment for the benefit of creditors. The termination of this Agreement shall automatically, and without any further action, terminate and extinguish all Services.
- Termination without Cause. In the event Client terminates this Agreement for convenience, Client will pay McCracken in accordance with the specific SOW termination language. The termination of this Agreement, for any reason, shall not affect Client’s obligation to compensate McCracken pursuant to Section 10 of this Agreement.
- Termination for Cause. Either party may terminate the Agreement for cause if the other party has breached any material provision or condition of the Agreement and has failed to cure such breach or has failed to commence a good faith effort to cure such breach within thirty (30) days of the receipt of written notice from the non-breaching party. In addition to the foregoing and to any other rights it may have under this Agreement, either party may, at its option, but subject and subordinate to the provisions of Section 23, terminate this Agreement for cause if either party ceases to do business in the normal course of business, becomes or is declared insolvent or bankrupt, files or has filed against it a case under any bankruptcy or insolvency law, or becomes the subject of any proceeding relating to liquidation. In the event of termination for cause, McCracken shall be liable only for the work performed under the Agreement up to the date of termination, and Client shall be liable for all unpaid invoices from McCracken to Client. Neither party shall be liable to the other party for any indirect or consequential damages, which result from termination for cause.
10. Price and Payment. Unless otherwise set forth in the SOW:
- The Fees for the Services shall be as set forth in the SOW.
- Client shall pay all amounts payable by Client under this Agreement within fifteen (15) days of receipt of the McCracken invoice.
- All expenses for the Services described in the SOW include all of the charges for the Services, including travel and incidental expenses. Additional services including associated travel and incidental expenses will be set forth in a separate statement of work as needed.
- Failure to pay when due may result in suspension or termination of this Agreement at McCracken’s sole option. Any payment received after the due date will be assessed a late fee of three percent (3%). Any question or dispute concerning invoices must be submitted in writing within fifteen (15) days of the invoice date.
- Client is responsible for payment of all applicable sales federal, state, city and municipality taxes associated with the Fees and Services. If McCracken has the legal obligation to collect taxes for which Client is responsible, the appropriate amount shall be invoiced to and promptly paid by Client.
11. Training. Training will be provided in accordance with the SOW(s). Additional training or general consulting services are available at McCracken’s then-current rates.
12. Confidentiality and Nondisclosure.
- Client agrees not to sell, transfer, publish, disclose, display or otherwise make available to others any source code, object code, documentation or other material relating to the Services and to use its best efforts to assist McCracken in identifying and preventing any use or disclosure of the source code or object code of any software used in connection with the Services or of any portion of the Services, or any of the algorithms or logic contained therein. Without limitation of the foregoing: (i) Client shall advise McCracken immediately in the event that Client learns or has reason to believe that any person who has had access to the Services, or any portion thereof, has violated or intends to violate the terms of this Agreement and (ii) Client will, at Client’s expense should the violator be Client’s employee, cooperate with McCracken in seeking injunctive or other equitable relief in the name of Client or McCracken against any such person. Client acknowledges that (x) the Services contain proprietary trade secrets of McCracken and hereby agrees to maintain the confidentiality of the Services in a manner using at least as great a degree of care as the manner used to maintain the confidentiality of Client’s own most confidential information; (y) the Services or any software used to provide the Services may not be accessed by any third party without McCracken’s express written permission and (z) the disclosure of any aspect of the Services, of any of the confidential information referred to herein or any information, which, at law or equity, ought to remain confidential, will give rise to irreparable injury to McCracken, which is inadequately compensable in damages. Accordingly, McCracken may obtain injunctive relief against the breach or threatened breach to any of the foregoing undertakings, in addition to any other remedies that may be available, and Client hereby consents to the obtaining of such injunctive relief.
- McCracken acknowledges that in the course of implementing the Service it will be supplied with confidential or proprietary information of Client concerning its business affairs, property, data, methods of operation, processing systems or other information. McCracken agrees to maintain the confidentiality of such information and to treat such information with the same degree of care and security as McCracken treats its own most confidential information.
- Client agrees that McCracken may use Aggregated Anonymous Data for purposes of analysis. Client agrees that McCracken may use and publish such data, provided that it does not incorporate any personally identifiable information, and the Aggregated Anonymous Data will not identify Client in any manner.
- Client agrees that McCracken is permitted to include the Client’s name in a general listing of McCracken’s clients. The general listing will not imply endorsement of McCracken by the Client, nor will it include any details about specific projects.
- If either party (“Receiving Party”) is compelled by law to disclose confidential information of the other party (“Disclosing Party”), the Receiving Party is required to give prior notice of such compelled disclosure to Disclosing Party (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s confidential information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such confidential information.
- The provisions of this Confidentiality and Nondisclosure Section shall survive the termination of this Agreement for whatever reason.
13. Limited Warranty.
- McCracken warrants that (i) the Services shall perform substantially in accordance with the attached SOWs, (ii) the functionality of the Services shall not be materially decreased during the Term, and (iii) McCracken support staff will make commercially reasonable efforts to resolve issues with the Services.
- McCracken’s entire liability and Client’s exclusive remedy for any breach of this Limited Warranty shall be, at McCracken’s option, either (a) return of the Fees paid, if any, in an amount not exceeding the amount paid by Client to McCracken during the twelve (12) months preceding the claim or (b) repair or replacement of the Services that does not meet McCracken’s Limited Warranty. This Limited Warranty is void if failure of the Services has resulted from accident, abuse, or misapplication. Any replacement Services will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
- NO OTHER WARRANTIES. EXCEPT AS OTHERWISE STATED IN THIS SECTION, THE SERVICES AND ANY RELATED SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PURPOSE. SINCE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, THE MCCRACKEN DISCLAIMER MAY NOT APPLY IN THOSE JURISDICTIONS. MCCRACKEN DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE OR AN ACCIDENT. MCCRACKEN WARRANTS TO CLIENT THAT IT WILL PERFORM SERVICES UNDER THIS AGREEMENT IN A WORKMANLIKE MANNER IN ACCORDANCE WITH CUSTOMARY COMMERCIAL STANDARDS. THE FOREGOING WARRANTY IS MCCRACKEN’S ONLY WARRANTY CONCERNING ITS SERVICES. MCCRACKEN SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR PERFORMANCE.
14. LIMITATION OF LIABILITY. MCCRACKEN’S TOTAL LIABILITY AND CLIENT’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT OR ANY ADDENDUM HERETO SHALL BE LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY CLIENT TO MCCRACKEN DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT WILL BE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE LIMIT. MCCRACKEN SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY ADDENDUM FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF MCCRACKEN IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. CLIENT AGREES THAT IN NO EVENT SHALL MCCRACKEN BE LIABLE TO CLIENT FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF MCCRACKEN IN THE PERFORMANCE OF SERVICES HEREUNDER.
15. Indemnity. McCracken will defend any action brought against Client to the extent that such action is based on a claim that any aspect of the Services used within the scope of this Agreement infringes any United States patents, copyrights, licenses or trade secrets; provided that McCracken is immediately notified in writing of any such claim. McCracken shall have the exclusive right to control such defense. In no event, shall Client settle any such claim, lawsuit or proceeding without McCracken’s prior written approval. If, as a result of any such claim, litigation or threat thereof, McCracken or Client is permanently enjoined from using the Services by a final, non-appealable decree, McCracken at its sole option and expense may procure for Client the right to continue to use the Services, or at its sole option and expense, may replace or modify the Services so as to settle such claim, litigation or the threat thereof. If such settlement or such modification of the Services is not reasonably practical in the sole opinion of McCracken, after giving due consideration to all factors including financial expense, McCracken may discontinue and terminate the Services upon thirty (30) days’ written notice to Client and shall refund to Client any unused prepaid Fee on a prorata basis for Services not yet provided. The foregoing states the entire liability of McCracken with respect to infringement of any copyrights, patents or trade secrets by the Services or any parts thereof, and Client hereby expressly waives any other such liabilities.
16. Non-Solicitation of Employees. Client and McCracken each recognize that their respective employees, and such employees’ loyalty and service, constitute a valuable asset of their respective companies. Accordingly, Client and McCracken hereby agree not to make any offer of employment to, nor enter into a consulting relationship with, any person who is currently employed by the other party or was employed by the other party within two (2) years after such person’s employment is terminated for any reason other than in response to a general advertisement or public solicitation not directed specifically to employees of the other party.
17. Dispute Resolution. This Agreement shall be interpreted in accordance with the substantive laws of the State of Ohio without giving effect to the conflict of law or choice of law rules thereof. Any suit relating to this Agreement shall be instituted in any state or federal court having jurisdiction over the subject matter thereof and located in Hamilton County, Ohio, and the parties hereto hereby submit to the jurisdiction of any such court. Both parties hereby specifically agree to waive any right to a jury trial. The dispute shall be governed by the rules applicable to the state or federal court and all rights to appeal any adverse verdict shall be preserved. Both parties agree that the award shall include all attorney fees and expenses to the prevailing party. Any dispute arising out of relating to this Agreement shall be filed within twelve (12) months of the termination, or modification, of this Agreement
18. Excusable Delay. McCracken shall not be responsible or liable for failure to perform hereunder if attributable to any cause or contingency beyond its reasonable control including, without limitation, act of God; act or omission of civil or military authority; fire; flood; epidemic; earthquake; labor dispute; war; riot; unusually severe weather; terrorism; compliance with any regulation or directive of any national, state or local government; or any cause by the exercise of reasonable diligence McCracken is unable to overcome. McCracken shall in no event be responsible for lost profits, remote, incidental, punitive or consequential damages.
19. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay. McCracken will attempt to meet such extended performance times. If such extended performance times conflict with McCracken’s pre-existing contractual commitments to other clients, McCracken shall so advise Client, and the parties shall use best efforts to agree in writing to an alternative schedule. If the parties are unable to agree upon an alternative schedule, or if the delay continues for a period of three (3) months or more, this Agreement may be terminated by either party upon thirty (30) days prior notice and neither party shall be liable to the other for such termination; provided, however, Client pays McCracken for all Services rendered and expenses incurred through such date of termination.
20. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the legal representatives, successors, heirs and permitted assigns of both parties. This Agreement cannot be terminated in the event of transfer or assignment, or due to the change in the nature, control or ownership of McCracken or the Client.
21. Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Client and McCracken as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. If any term, covenant or condition of this Agreement, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to other persons or circumstances, shall not be affected thereby, and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio and the federal laws of the United States of America. Client hereby consents and submits to the jurisdiction and forum of the state and federal courts in the State of Ohio in all questions and controversies arising out of this Agreement. Notwithstanding the foregoing, the parties agree that the Uniform Computer Information Transactions Act (“UCITA”) as enacted in any State of the United States shall not apply to this Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to this Agreement.
23. Assignment. The Client may not assign any of its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, without the prior written consent of McCracken. McCracken may give or not give consent in its sole and absolute discretion. McCracken may assign this Agreement to any affiliate in the event of merger, reorganization, sale of all or substantially all of its assets, or a change of control or operation of law.
24. Merger Clause. This Agreement, including any exhibits or documents incorporated herein by reference, constitutes the final written expression of all the terms and conditions of the understanding of Client and McCracken and supersedes all prior negotiations, representations or agreements, whether written or oral, with respect to the subject matter of this Agreement. This Agreement may be modified only by written agreement signed by both Client and McCracken.
25. Limitation. No action, regardless of form, arising out of this Agreement shall be brought by Client more than twelve (12) months after such cause of action shall have occurred.
26. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile or PDF scanned signature may substitute for and have the same legal effect as the original signature.
27. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
28. Independent Contractor Status. It is the intention of the parties hereto that McCracken is an independent contractor and this Agreement shall not be deemed to create a partnership, joint venture, employee, agent, or similar relationship between McCracken and Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and McCracken or any employee or agent of McCracken.
29. Insurance. To the extent that McCracken’s personnel may perform work at Client’s premises, McCracken will carry comprehensive general liability insurance, including broad form property damage coverage, with limits of at least $500,000 combined single limit for personal injury and property damage, providing insurance for the acts of McCracken’s employees.
30. Headings and Captions. The captions and headings used in and the arrangement of this Agreement are for convenience only and do not in any way affect, limit, amplify or modify the terms and provisions hereof. By signing this Agreement, Client acknowledges that it has read each page hereof and understands the terms and conditions contained herein. Client acknowledges that it has had the opportunity to answer questions regarding the terms contained herein and the opportunity to seek independent legal advice concerning the contents of this Agreement.
31. Notices. All notices, requests, demands and other communications hereunder shall be in writing and (a) delivered by hand, (b) sent prepaid for next-day delivery by Federal Express (or a comparable overnight delivery service), (c) sent by electronic mail (“E-mail”) or (e) sent by the United States mail, certified, postage prepaid, return receipt requested, at the addresses and with such copies as designated below:
McCracken Group, Inc.
9145 Governors Way
Cincinnati, OH 45249