THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF VENNSPACE, LLC dba MEMBERJUCTION PRODUCTS AND/OR SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on June 17, 2022. It is effective between Customer and VennSpace, LLC dba MemberJunction as of the date of Customer’s accepting this Agreement (the “Effective Date”).
As used in this Agreement, the following definitions shall apply:
1.1 “Authorized User” means any Customer employee, consultant, or agent who in course of Customer’s normal business may have a need to use the reports or findings of the services provided. In no event shall an Authorized User include an employee of a Company competitor.
1.2 “Company Competitor” means any company, person or entity that generates a significant portion of their revenues from products or services that are substantially similar to products or services offered by Company.
1.3 “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party.
1.4 “Work Product” means all work created under this Agreement by Company.
2 Scope of This Agreement.
2.1 This Agreement covers one or more separate products or services to which the parties now or hereafter agree, with each such project to be described in a separate Order Form to be attached as an exhibit hereto.
3 Company Professional Services.
3.1 Upon Customer’s request, Company may provide consulting or other services to Customer for one or more projects. For each project to be performed by Company for Customer, Company shall prepare an Order Form, which shall contain such information as the project name, the project description, the estimated start and completion dates, cost, and any other pertinent information. Work shall commence under the Order Form once the document has been executed by an authorized individual for each party and deemed incorporated by reference in this Agreement.
3.2 All work performed by Company for Customer shall be specified within the relevant Order Form and accompanying Exhibits. Customer agrees to pay Company for all services Company performs hereunder as specified in each Order Form. For Order Forms priced as “time and materials”, hourly rates specified in each Order Form shall continue in effect for the term of the relevant Order Form.
3.3 Unless otherwise stipulated in the applicable Order Form, Company shall also be entitled to reimbursement for all reasonable out-of-pocket and other expenses it incurs, and provides documentation for, directly related to performing services under this agreement, including but not limited to all round trip travel costs (coach airfare when air travel is required) and food and lodging costs. For any single expense in excess of $750 USD, Company shall receive prior approval from Customer before incurring the expense. For purposes of this Subsection 3.3, prior approval may include email approval of an expense. If any work is performed by Company for Customer without an Order Form in effect, Company will be paid according to its then-current rate schedule, plus reimbursement for all reasonable out-of-pocket and other expenses it incurs.
3.4 If it becomes necessary to modify an Order Form for any reason, Company may initiate a Change Order with respect to the Order Form. A Change Order may modify start date, completion date, cost or any other element of the Order Form as may be mutually agreed upon by the parties. A Change Order shall take effect once it has been signed by an authorized individual for each party, at which time it shall become an exhibit to, and deemed incorporated by reference in, this Agreement.
3.5 Company shall bill Customer pursuant to the billing scheduled agreed to in each Order Form. Payment terms for all invoices shall be defined in each Order Form. Customer understands that failure to timely pay undisputed charges within such invoices will result in the cessation of all work hereunder. Customer shall have 10 days from receipt of invoice to advise Company in writing of any disputed charge appearing on an invoice. Customer shall not unreasonably dispute an invoice from Company. Customer agrees that time is of the essence in the resolution of disputes and agrees to work with Company to resolve disputes in a timely fashion.
4 Restrictions Against Third Party Use.
4.1 Work Product may not be used by any person or entity that is not an Authorized User. Work Product is to be used for Customer’s internal use and only to process information or data of Customer, or such other data which Customer may through contractual agreements, have secured from third parties during the normal course of Customer’s business.
5 Acknowledgement of Ownership Rights.
5.1 Customer acknowledges that it obtains no ownership rights in any Work Product. All rights to the Work Product, including but not limited to any accompanying technical documentation, Confidential Information, trade secrets, trademarks, service marks, patents, and copyrights, are, shall be, and will remain the property of Company or any third party from whom Company has licensed software or technology. Upon full payment of all relevant fees associated with each Order Form, Company hereby grants Customer a limited, non-exclusive, perpetual, worldwide license to make use of the Work Product and create derivative works subject to the same restrictions in Section 4.1.
5.2 Company acknowledges that it obtains no ownership rights in any Work Product that is developed by Customer without Company’s assistance.
6 Confidential Information and Proprietary Rights.
6.1 Customer acknowledges that, any Work Product developed by Company under this Agreement and all documentation contains proprietary and Confidential Information of Company. Customer agrees to keep any such Work Product and all documentation in confidence and to take all reasonable precautions to ensure that no unauthorized persons have access to any Work Product and any documentation and that no unauthorized copies are made. Breach of this provision shall be grounds for immediate termination of this Agreement without further obligation to Customer and grounds for recovery of all damages resulting from breach of confidentiality.
6.2 Company acknowledges that in the course of performing work for Customer under this agreement, Customer may disclose its Confidential Information to Company. Company agrees that it shall not disclose such information to any third party without first obtaining Customer’s permission. Breach of this provision shall be grounds for immediate termination of this Agreement without further obligation to Company and grounds for recovery of all damages resulting from breach of confidentiality.
7.1 Company and any third party from whom Company has licensed software or technology disclaim[s] all warranties, either express or implied including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement, with respect to the Product.
7.2 Company and any third party from whom Company has licensed software or technology will not be liable for lost profits, lost opportunities, or incidental or consequential damages under any circumstances. Exclusive remedy under warranty: Customer’s exclusive remedy under warranty shall be, at Company's choice, (a) correction of any error or defect in the Work Product as to which Customer has given notice or (b) replacement of the Work Product involved.
8 Overall Limitation of Damages
8.1 Company will not be liable for indirect or consequential damages, expenses or losses (including lost profits) incurred by Customer as a result of the accidental erasure, damage, or destruction of files, data or Work Products which may occur in the course of Company's or Customer's testing, compiling, installing, maintaining, or upgrading any Work Product provided under this Agreement. Company's liability, if any (whether pursuant to the limited warranty or otherwise), in connection with any specific Work Product or services provided under this Agreement shall be limited to the amount of fees collected by Company hereunder in the twelve months preceding a claim.
8.2 Except in the case of intentional breach of confidentiality, gross negligence, death, bodily injury and willful or wanton property damage, in no case shall the aggregate amount of damages payable to Customer from Company for any claim arising from this Agreement (including, without limitation, its warranty and indemnification provisions) exceed the amounts paid by Customer to Company under this Agreement in the twelve months preceding a claim.
9.1 Company agrees to indemnify and hold Customer harmless against any loss, damage, expense, or cost, including reasonable attorneys' fees, arising out of any claim, demand, or suit asserting that the Services or any Company Work Product infringes or violates any copyright, patent, trade secret, trademark, or proprietary right existing under the laws of the United States or any state or territory thereof ("Claim"), subject to the overall limitation of damages hereunder.
9.2 The indemnification obligation in this section shall be effective only if (1) at the time of the alleged infringement, Customer gave prompt notice of the Claim and Permitted Company to defend, and (2) Customer has reasonably cooperated in the defense of the claim. Company shall have no obligation to Customer to defend or satisfy any claims made against Customer that arise from the use, sale, licensing, or other disposition of the Work Product by Customer other than as permitted by this Agreement or from the Customer's modification of the product.
10.1 It is agreed that either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party (a) becomes insolvent or makes an assignment for the benefit of creditors; (b) files or has filed against it any petition under any Title of the United States Code or any applicable bankruptcy, insolvency, reorganization or similar debtor relief law which is not discharged within thirty (30) days of said filing, or (c) requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets; (d) becomes unresponsive, or halts the program at any time during the contract, for a period of 45 days or greater.
10.2 Company may terminate this Agreement in the event Customer (a) fails to make when due any payment required under this Agreement and such failure continues for a period of thirty (30) days after notice thereof by Company to Customer; (b) commits a material breach of any of its obligations concerning scope of use or the protection of, Work Product, intellectual property of Company, and Confidential Information; (c) materially breaches any of its other obligations under any provision of this Agreement, which breach is not remedied within thirty (30) days after notice thereof by Company to Customer.
10.3 Either party may terminate this Agreement for any reason after all obligations associated with any associated Statements of Work have been fully satisfied by furnishing thirty days advance written notice to the other party.
11 Rights Upon Termination.
11.1 In the event that termination of this Agreement should occur as a result of Customer's failure to successfully execute its obligations under this Agreement, Customer shall immediately turn over to Company any Confidential Information relating to the services provided.
11.2 Upon termination, Customer shall pay Company all fees due through the end of the applicable SOW’s term and all rights granted with respect to the services will immediately terminate.
11.3 The termination of this Agreement shall not extinguish any rights or obligations of the parties relating to protection of Confidential Information or to the protection of Company's intellectual property rights.
12.1 Customer may not sell, pledge, assign, sublicense, or otherwise transfer or share its rights or delegate its obligations under this Agreement without the prior written consent of Company. Any attempted sale, pledge, assignment, sublicense or other transfer in violation hereof shall be void and of no force or effect. Company may assign its rights and delegate its duties hereunder at any time without the consent of Customer.
13 Employee Relationship.
13.1 Neither party will hire, employ, or contract for services directly with any current employee or agent of the other without prior written consent of the other, for a minimum time period of twelve (12) months after termination of this agreement. Either party may hire any prior employee or agent of the other so long as said employee or agent has been terminated from such relationship with the other party for at least twelve (12) months.
14 General Provisions
14.1 Applicable Law. The parties agree that this Agreement and interpretation thereof shall be governed, construed and performed in accordance with the laws of the State of Louisiana, exclusive of its choice of law provisions. The parties agree that the United Nations Convention for the International Sale of Goods shall not apply to this agreement.
14.2 Taxes. Customer shall pay, in addition to the other amounts payable under this Agreement, all local, state and federal and/or national excise, sales, use, personal property, gross receipts and similar taxes (excluding taxes imposed on or measured by Company’s net income) levied or imposed by reason of the transactions under this Agreement. Customer shall, upon demand, pay to Company an amount equal to any such tax(es) actually paid or required to be collected or paid by Company.
14.3 Required Consents. Customer warrants that it has obtained lawful permission to use all hardware and software required in order for the services to take place.
14.4 Publicity. The terms of the Agreement, including Exhibits attached hereto, shall not be disclosed by the Customer or any person or entity having access to it. The existence but not any of the terms of this Agreement may be disclosed by either party without the prior written consent of the other. Each of the parties may reveal the terms of this Agreement to its own officers, directors, shareholders, employees, agents, investors or prospective investors who have a need to know the terms of this Agreement, and who are subject to confidentiality agreements no less restrictive than the relevant provisions herein.
14.5 Public Reference. Customer must consent to any public use of its name as a Customer of Company. Upon approval by Customer of a specific instance of use (such as a case study or press release), the specific instance of use may be provided by Company to any number of individuals or entities without additional consent from Customer. Upon written notice by Customer, Company will remove all reference to Customer’s name that is within Company's control as soon as reasonably possible.
14.6 Modification. This Agreement may not be modified or amended except in writing when signed by authorized representatives of each of the parties. No purported modification or amendment shall be binding until approved in writing by an authorized representative of Company.
14.7 No Waiver. The failure of either party to exercise any right or the waiver by either party of any breach, shall not prevent subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of the Agreement.
14.8 Notices. Any notice required or permitted to be sent hereunder shall be in writing and shall be sent in a manner requiring a signed receipt, such as Federal Express, courier delivery, or, if mailed, registered or certified mail, return receipt requested. Notice is effective upon receipt.
As of the date of this Agreement, notices to Company must be sent to the following contact and address:
6221 S. Claiborne Ave, Suite 587
New Orleans, LA 70125
Changes in contact and address information must be sent in writing by a method requiring a signed receipt. Daily correspondence required to manage the actual project can take the form of electronic mail.
14.9 Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party ("Force Majeure"), provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of twelve (12) months.
14.10 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants, or undertakings other than those expressly set forth in this Agreement and any related Statements of Work.
14.11 Equitable Remedies. The parties recognize that money damages are not an adequate remedy for any breach or threatened breach of any obligation hereunder by Customer involving intellectual property or Confidential Information. The parties therefore agree that, in addition to any other remedies available hereunder, by law or otherwise, Company and any third party from whom Company has licensed software or technology shall be entitled to an injunction against any such continued breach by Customer of such obligations.
14.12 Late Fees, Costs, and Attorneys' Fees. A late payment charge of 1.5% per month, compounded monthly, shall apply to any undisputed payment due from Customer that is in arrears for a period exceeding thirty (30) days. Any disputes not timely submitted per Section 3.5 of this Agreement shall also be subject to the late payment charge in this section. In any legal action or arbitration proceeding brought on account of a breach, the prevailing party shall recover from the other party all costs of litigation or arbitration, including reasonable attorneys' fees.
14.13 Exclusive Jurisdiction and Venue. Any cause of action arising out of or related to this Agreement, including an action to confirm or challenge an arbitration award, may only be brought in the courts of applicable jurisdiction in New Orleans Louisiana, and the parties hereby submit to the jurisdiction and venue of such courts.
14.14 Dispute Resolution. Any dispute occurring or relating to this agreement, or breach thereof, should be determined by arbitration in accordance with the arbitration rules of the American Arbitration Association. Any arbitration shall proceed in the State of Louisiana. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction thereof.