We believe in transparency and the reduction of paperwork, along with finding Clients who truly view us as a strategic partner. As a technology and development group there are a lot of details that need to made available in regards to ownership, employment, taxes, etc. We've managed to put together a Master Services Agreement, below, that hopefully limits the amount of legal jargon and clearly states rules we expect both NewFire and our clients to follow.
Finally, we are always looking for feedback and ways to improve. If you find any part of our agreement confusing, have questions, or suggestions, please let us know!
Master Services Agreement
Effective as of January 1, 2017, we have updated this Master Services Agreement.
This Master Services Agreement (also referred to as "MSA"), is dated from the Effective Date, which is the execution date of the first Statement of Work (also referred to as “Statement of Work” or “SOW”). This MSA governs Statement(s) of Work between NewFire Group, LLC., a Nebraska corporation having its principal offices at 13304 W Center Rd, Suite 106, Omaha, NE 68144 (“NewFire”), and the party (“Client”) executing any Statement of Work referencing this agreement. This Master Services Agreement along with any executed Statement of Work(s) including other attachments, exhibits, or addenda, collectively shall constitute the Agreement. If there are any conflicts or inconsistencies between this MSA and any Statement of Work, or attachments, exhibits or addenda, conflicts will be resolved in the following order of precedence: 1) the MSA; 2) the SOW; 3) other exhibits or attachments to the Agreement.
STATEMENT OF WORK
- Each Statement of Work will identify this MSA and indicate that it is subject to the listed terms of this MSA.
- Each SOW will describe:
- Services, which will include the project, the scope and nature of the tasks and services to be performed
- Deliverables, which will include all items to be delivered by NewFire
- The responsibilities of the Client
- The fees, costs, and expenses associated with the Services and Deliverables
- Change Orders can be made by either Party to request changes to the Services and Deliverables
- A change order is made effective when it has been signed by authorized representatives from both NewFire and Client
- Estimates concerning time are good faith estimates based upon information available and circumstances existing at the time.
- Estimates can be adjusted through a Change Order whenever there is a change in information, circumstances, scope, or timing that would increase the time or resources expended by NewFire
- The Term of the Master Services Agreement begins on the Effective Date, which is the execution date of the first Statement of Work, and will remain effective among NewFire and Client until termination or expiration of the final SOW.
FEES AND PAYMENT TERMS
Fees and Charges
- Client will pay the Fees and Expenses. Expenses include other charges and reimbursable items as defined in each SOW.
- All Fees and Expenses are expressed in U.S. Dollars and, unless specifically defined in the SOW, are non-refundable.
- Client will pay amounts due in full within thirty (30) days of the date of each invoice. Balances not paid within this time are considered past due.
Past Due Balances
- Past due balances are subject to a late payment charge calculated at a rate of the lesser of one and one-half percent (1.5%) per month, or the highest rate permitted by law until paid.
- NewFire may suspend Services or stop work toward any Deliverables, should Client fail to pay properly invoiced fees or charges on or by the due date.
- NewFire may terminate the applicable SOW if Client does not pay a past-due balance within ten (10) days of receipt of written notice by NewFire.
Hours of Work
- NewFire resources will be available to work on-site at Client offices and remotely during normal business hours (8:00 AM CST – 5:00 PM CST).
- Work performed outside of extended business hours (7:00 AM CST - 7:00 PM CST) or on weekends, will be pre-approved by Client prior to the work being performed and will be billed at a rate of one and one half (1.5) times the normal pay rate.
- Client will be responsible for any taxes based upon the Fees, Expenses, Deliverables or Services rendered, any of which may be paid by NewFire on Client’s behalf and added to the Client’s invoice.
- NewFire is acting as an Independent Contractor and not as an employee or agent of Client.
- NewFire will be solely responsible for the payment of all compensation to its employees, including employment taxes and workmen’s compensation.
- NewFire may engage third party vendors or subcontractors to perform some of all of the Services, provided that NewFire will remain liable for the performance of its vendors and subcontractors.
- During the Term of the MSA and for a period of twelve (12) months following the completion/termination of this MSA, neither NewFire or Client will directly or indirectly solicit for employment, or employe, any employee of the other party who performed the work in connection with a SOW, without written consent from the other party.
- This restriction will not apply to any employee of either NewFire or Client who submits an unsolicited application in response to a general job posting or public solicitation for employment.
OBLIGATIONS OF CLIENT
- For any Services to be provided on premises owned or controlled by Client, NewFire requires the Client to provide the following:
- a safe work environment
- adequate power, heating and cooling, Internet and network access
- if required, access to computer workstations, software, hardware, documentation and equipment
- Client will ensure access to and cooperation from Client personnel, agents, and contractors if it is necessary for the performance of Services or completion of Deliverables.
- “Confidential Information” means any non-public information or information that NewFire or Client treats as confidential such as business activities, employees, customers, prices, financial affairs, technology, software, marketing or sales plans, trade secrets, processes or technical/engineering data.
- The pricing and other commercial terms contained in the SOW are considered NewFire Confidential Information.
- Either Party may disclose (Disclosing Party) to the other Party (Receiving Party) Confidential Information.
- The Receiving Party may use the Disclosing Party’s Confidential Information in order to perform or receive the Services or Deliverables and to comply with the terms and obligations set out in this Agreement.
- Confidential Information will be kept confidential by the Receiving Party, and shall not be disclosed, in whole or in part, to any person other than its affiliates, officers, directors, employees, subcontractors, agents, or representatives (collectively, “Representatives”) who need to know such Confidential Information for the purpose of negotiating, executing, and implementing this Agreement, or prosecuting or defending any claims in court.
- The Receiving Party agrees to inform its Representatives of the confidential nature of such information and to direct such persons to treat Disclosing Party Confidential Information in accordance with these terms, and shall be liable for any breach hereof by its Representative(s).
- The Receiving Party shall protect Confidential Information in the same manner as it protects its own confidential information, but in any case using no less than a reasonable degree of care.
- The obligations of the Receiving Party under this Section will not apply to information that the Receiving Party can demonstrate:
- it was in its possession at the time of disclosure and without restriction as to confidentiality
- at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party
- has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party
- is independently developed by the Receiving Party without regard to the Confidential Information of the Disclosing Party
- The Receiving Party may disclose Confidential Information as required by law, court order or regulation; provided that the Receiving Party:
- gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy
- discloses only such Confidential Information as is required
- uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
Deliverables and Services
- NewFire warrants the following for any Deliverable and Services:
- the Services will be performed, and Deliverables provided, by qualified personnel in a professional manner with reasonable care and skill in accordance with industry standard.
- The Services and Deliverables will substantially conform to requirements and specifications defined in the SOW.
- In the event of non-conformity with the Limited Warranty and NewFire receiving written notice of non-conformance within the time period defined in the SOW, NewFire will, at its sole option and without additional charge to the client, either:
- Correct or modify the Deliverables
- Re-perform the Services so they meet the written specifications
- Refund to the Client that portion of fees and charges associated with the non-conforming Deliverable or Service
- This section sets forth Client’s sole and exclusive remedy, and NewFire’s entire liability, for breach of any warranty.
- Unless specifically specified within this MSA or a SOW, NewFire does not make or give any representation or warranty or condition of any kind.
LIMITATION OF LIABILITY
Exclusion of Damages
- Except for Breach of Confidentiality defined in this Agreement, in no event shall either party be liable or obligated to the other or any third party in connection with the Services, Deliverables, this Agreement or otherwise for any loss of profits, loss or business, loss of data or use of data, interruption of business or any other direct or indirect damages or any kind, even if it has been advised in advance of the possibility of such damages or such damages could have reasonably foreseen by IT.
- In no event shall NewFire’s liability to Client or any other person or entity arising out of or in connection with this Agreement or the Services, exceed, in the aggregate, the lesser of:
- One Hundred Thousand U.S. Dollars ($100,000)
- The total fees paid by Client to NewFire for the particular Service or Deliverable with respect to which liability relates
- The limitations specified in this Limitation of Liability Section will survive and apply event if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
OWNERSHIP OF PRODUCT
Deliverable and Services
- Unless otherwise agreed to in writing in the applicable SOW, between NewFire and Client, NewFire shall own all right, title and interest in and to any intellectual property rights associated with the Services and Deliverable.
- Subject to the Client’s payment in full for the Deliverables, NewFire grants Client a non-exclusive, royalty-free, non-transferrable limited license to use the Deliverables or Services as further detailed in the applicable SOW.
- As part of performing the Services or creating the Deliverables, NewFire may use certain software development tools, know-how, processes, methodologies, templates, frameworks, algorithms or software developed or to be developed by or on behalf of NewFire, which have been and/or will be reused by NewFire for other clients (“NewFire Materials”).
- NewFire shall retain all right, title and interest in and to NewFire Materials.
- Subject to Client’s payment in full, NewFire grants to Client a non-exclusive, royalty-free, non-transferrable limited license to use any NewFire Materials that are embedded in the Services or Deliverables sole for the purposes set forth in the SOW and only so long as such NewFire Materials (if any) remain embedded in the Deliverables or Services and are not separated.
- Client agrees not to reverse engineer or disassemble any NewFire Materials.
Third Party Materials
- NewFire may use third party software or other materials incorporated in the Deliverables and Services.
- Client’s interest in the third party software or materials shall be determined according to the agreements of the third parties, unless otherwise described in the applicable SOW.
- NewFire, its employees and agents shall be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of providing Services or Deliverables.
- NewFire may perform similar services for third parties using the same personnel that NewFire may utilize for rendering Services/Deliverables for Client, subject to NewFire’s obligations respecting Client’s Confidential Information defined in this Agreement.
- No licenses will be deemed to have been granted by either party to any of its patents, trade secrets, trademarks or copyrights, except as otherwise expressly provided in this Agreement or a SOW.
Termination for Default
- The Agreement may be terminated by either party (the “terminating party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “defaulting party”):
- the defaulting party commits a material breach of any of its obligations under the Agreement and fails to cure such breach within thirty (30) days from the date of such written notice (unless a different cure period is expressly provided in the Agreement)
- any filing of a petition in bankruptcy by the defaulting party, any appointment of a receiver for the defaulting party, any assignment for the benefit of the defaulting party’s creditors or any filing of a petition in bankruptcy against the defaulting party that is not dismissed within ninety (90) days from the date of filing.
Effects of Termination
- In the event either party terminates the Agreement according to this Termination Section, NewFire will be entitled to payment for all Services and Deliverables rendered through the date of termination (including for work in progress).
- If NewFire terminates the Agreement pursuant to Section 11.A, or the Client terminates a SOW without cause, the Client will also pay NewFire for all costs reasonably incurred by NewFire in anticipation of performance of the Services/Deliverables to the extent they cannot reasonably be mitigated, and any other termination costs NewFire incurs, including, but not limited to, canceling any secondary contracts it undertook in anticipation of performance of the Services/Deliverables, and any other actual damages suffered by NewFire.
- This MSA survives until expiration or termination of all associated Statements of Work.
- In the event of termination or upon expiration of this MSA, the following sections will survive and continue in full force and effect:
- Fees and Payment Terms
- Personnel - Non-Solicitation
- Confidential Information
- Limitation of Liability
- Ownership of Work Product
- Governing Law and Jurisdiction
- NewFire may list Client’s name on NewFire’s website disclosing that NewFire has provided Services to Client.
- Other than NewFire’s website, neither party may use the other party’s name, logo, service or trademark in any advertising, press release, or endorsement without the other party’s written consent.
- Neither party shall be in default of any obligation (other than a payment obligation) due to causes beyond such party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials, provided that the party has exercised reasonable care to mitigate the impact of a Force Majuere event.
- Notices shall be effective when delivered in writing and shall either be delivered in person, send by certified mail, or sent via electronic mail to the appropriate address provided on the SOW.
- NewFire and Client will give notice to the other of any change of address five (5) business days in advance of the effective date of the change.
- If any term or provision of this Agreement shall be held to be invalid, void or unenforceable, then the remainder of this Agreement shall not be affected, impaired or invalidated, and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
GOVERNING LAW AND JURISDICTION
- This Agreement shall be governed by and construed in accordance with the laws of the state of Nebraska.
- NewFire and Client agree to the jurisdiction of the state or federal courts sitting in the state of Nebraska, and each party agrees that it will bring any claim, action, lawsuit or proceeding arising out of or relating to this Agreement solely in a state or federal courts sitting in Douglas County Nebraska.
- This Agreement is not transferrable by either NewFire or Client without the prior written consent of both parties.
- Non-Exclusivity: this Agreement does not prevent or limit:
- NewFire to provide services or any kind or nature to any individual or entity as NewFire deems appropriate.
- NewFire developing for itself or for others, materials that are competitive with those produced as a result of the Services or Deliverables.