This Master Services Agreement (the “MSA”) is made by and between OakTech Systems L.P. (the “OakTech”, “us”, “our”, “we”), and any party that agrees to use our services as evidenced by a valid and executed SOW (as defined below) (“Customer”, “you”, “your”) as of the Effective Date (as defined in the SOW).
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERNS OUR SERVICES. BY USING OUR SERVICES, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT).
1. Engagement of Services
OakTech shall provide to Customer the services set forth in the statement of work to which the terms of this MSA are attached. Any subsequent statement of work mutually executed by the parties that reference this MSA shall be deemed accepted and incorporated into this MSA (each, a “SOW”). For each SOW, the parties may designate an individual to serve as the primary contact with respect to the performance of the Services. The “Services” shall include all services set forth in any executed SOW and addendum. Except as otherwise provided in the applicable SOW, OakTech will be free of control and direction from the Customer (other than general oversight and control over the results of the Services). OakTech will have exclusive control over the manner and means of performing the Services, including the choice of place and time. OakTech will provide, at OakTech’s own expense, a place of work and all equipment, tools, and other materials necessary to complete the Services; however, to the extent necessary to facilitate performance of the Services, Customer may, in its discretion, make certain of its equipment or facilities available to OakTech at OakTech’s request.
2. Compensation
Customer will pay OakTech the fees and other charges set forth in each SOW. If a deposit is required for any of the Services as set forth in an SOW, Customer shall pay such deposit prior to OakTech commencing the applicable Services. No reimbursement shall be due for expenses incurred in OakTech’s performance of the Services unless such expenses are pre-approved by Customer in writing or included in an SOW signed by both parties. Upon termination of this Agreement or each SOW for any reason, Customer shall immediately pay all outstanding and owed expenses and fees. Unless otherwise provided in a SOW, payment to OakTech will be due 15 days following Customer’s receipt of an invoice. All past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer is responsible for the cost of any collection fees, including attorneys’ fees, in the event that collection services are required to collect late payments.
2.1. Automatic Payments
The Customer hereby agrees, upon OakTech’s written request, to enroll in and authorize automatic payments (“Autopay”) for all recurring charges associated with the Services provided under this Agreement. The Customer agrees to provide and maintain accurate and up-to-date payment information, including a valid credit card or bank account, to facilitate these automatic payments. The Customer agrees to pay all fees outlined in this Agreement using the payment method selected. For the avoidance of doubt, all Fees are non-refundable during the Initial Term or any subsequent Term. If a charge is declined or otherwise unsuccessful, OakTech may suspend access to the OakTech Software or Services until payment is received.
3. Ownership
3.1. Owned Materials
Each party will respectively own and retain all right, title, and interest in and to all ideas, concepts, processes, discoveries, developments, information, materials, improvements, designs, artwork, templates, content, and other intellectual property owned by such party or independently developed without the benefit of any of the other party’s Confidential Information under this MSA (the respective “Owned Materials”). Owned Materials further include all improvements, enhancements, or other alterations to, and derivative works of, the Owned Materials developed during the performance of the Services that do not incorporate any of the other party’s intellectual property or Confidential Information.
3.2. Ownership of Work Product
OakTech hereby assigns to Customer all right, title, and interest in the final deliverables, products, documents, or other output produced, created, or developed by OakTech specifically for Customer and delivered to Customer as part of the Services (“Deliverables”). Notwithstanding the foregoing, “Deliverables” do not include any OakTech Owned Materials or any drafts of the Deliverables.
4. Representations and Warranties
OakTech represents and warrants that the Services will be performed in a professional manner and in accordance with industry standards. Each party to this Agreement represents and warrants to the other that (a) it has the right and authority to enter into this Agreement and to perform all of its respective obligations and undertakings; (b) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (c) no authorization or approval from any other person is required in connection with such party’s execution, delivery, or performance of this Agreement; and (d) the execution, delivery, and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
5. Confidential Information
“Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that should reasonably be considered confidential due to the nature of the information or the circumstances of its disclosure. Confidential Information will not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care. The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have confidentiality obligations no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its affiliates and its representatives, including legal counsel, financiers, and accountants, without the other party’s prior written consent. Without limiting the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or court order to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6. Term and Termination
6.1. Term
Unless otherwise set forth in an applicable SOW, this Agreement shall commence on the Effective Date and continue for an initial term of 12 months (the “Initial Term”). Following the Initial Term, this Agreement shall continuously renew on an annual basis (together with the Initial Term, each a “Term”) until terminated by either party with 60 days’ written notice prior to the end of the Term.
6.2. Termination for Convenience
Upon Customer’s termination of this Agreement for convenience, (a) 50% of the accrued and unpaid Fees under the SOW due for the remainder of the then-current Term, and (b) all pre-approved expenses will be immediately due and payable to OakTech. Customer acknowledges and agrees that OakTech has spent considerable time and effort preparing for and performing each SOW pursuant to this Agreement, OakTech is detrimentally reliant on each party satisfying its obligations hereunder, and a termination for convenience by the Customer within the Term would cause OakTech significant harm and damages. The parties agree and acknowledge the termination as described herein would result in damages to OakTech difficult or impracticable to determine and that the payment herein does not constitute a penalty.
6.3. Termination for Material Breach
Either party may terminate this Agreement and any SOW then in effect immediately in the event the other party has materially breached the Agreement and failed to cure such breach within 30 days after receipt of written notice from the non-breaching party. Upon termination for uncured material breach, Customer shall pay all outstanding amounts due for the terminated Services within 30 days of the termination effective date.
6.4. Effects of Termination
Upon termination of this Agreement or any SOW hereunder for any reason; (i) all licenses granted herein shall immediately terminate; (ii) Customer’s and its affiliates’ right to access and use the OakTech Software will automatically terminate; (iii) each party shall return to the other all property of the other party in its possession or control; provided, however, within sixty (60) days of the date of termination, OakTech shall provide to Customer a copy of Customer’s data in the format(s) for data store technology in use at the time of termination via secured file transfer protocol (“SFTP”) server or similar method at OakTech’s then-current hourly rate as incurred, and (iv) OakTech will promptly cease performing all Services. OakTech will have no obligation to retain Customer’s data and may delete Customer data within 60 days after the termination of this Agreement.
6.5. Survival
Notwithstanding anything to the contrary herein, any provisions or terms of this Agreement that by their nature or context must, or are intended by the parties to, survive expiration or termination of this Agreement shall so survive.
7. OakTech Software
Ownership. Customer understands and agrees that the Services include OakTech’s use of its proprietary software (the “OakTech Software”) used to collect, review, and analyze data from across various of Customer’s third-party platforms (“Third-Party Platforms”). OakTech owns and shall retain ownership of all right, title, and interest (including without limitation all intellectual property rights), in and to the OakTech Software and any and all modifications, derivatives, improvements, and enhancements to the same. Customer acknowledges and agrees that it has no right, license, or authorization with respect to the OakTech Software or any of the technology underlying the Services.
7.2. Integrations with Third-Party Platforms
During the Term, Customer may provide OakTech certain information (including usernames, passwords, etc.) to enable the OakTech Software to connect to, and/or upload data from, certain Third-Party Platforms. By enabling OakTech to access a Third-Party Platform, (a) Customer represents and warrants that it has all necessary rights, permissions, and authorizations to connect the OakTech Software to such Third-Party Platform; (b) Customer authorizes and instructs OakTech to enable integrations with Third-Party Platforms, to enter into Third-Party Platform Terms for the purpose of enabling such integrations, and to process any data accessed via such integrations on Customer’s behalf; and (c) Customer understands and agrees it is solely responsible for compliance with any applicable Third-Party Platform Terms. OakTech is not liable for any damage or loss arising from, or in connection with, such permitted integrations with Third-Party Platforms, or Customer’s reliance on the practices or policies of such Third-Party Platforms. Customer acknowledges that OakTech does not control the availability, features, or functionality of any Third-Party Platform and that such Third-Party Platform may change its availability, features, or functionality without any notice to OakTech or Customer. OakTech shall not be liable to Customer for any refunds or any damage or loss arising from, or in connection with, any unavailability or changes made by a Third-Party Platform. “Third-Party Platform Terms” means the terms and conditions, acceptable use policies, privacy policies, developer policies, or any other similar policies or terms of any Third-Party Platform.
7.3. Customer Content
As between Customer and OakTech, Customer shall own and retain ownership of all right, title, and interest in and to all Customer Content. “Customer Content” means any Customer-specific content, data, materials, and information that Customer provides to OakTech or OakTech receives from Third-Party Platforms in connection with the OakTech Software. Customer hereby grants to OakTech a nonexclusive, royalty-free and fully paid, worldwide license to store, host, process, analyze, modify, reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use the Customer Content, and to grant sublicenses in the foregoing rights, solely for the purposes of: (a) providing, operating, maintaining, supporting, and improving the OakTech Software and Services for Customer’s benefit; (b) enforcing this Agreement; and (c) complying with applicable laws. Customer confirms and warrants to OakTech that Customer has all the rights, power, and authority necessary to grant the licenses to Customer Content set forth herein and that use of the Customer Content in the manner contemplated in this Agreement will not (i) infringe any rights of any third party, including but not limited to any copyrights, trademarks, right of privacy or publicity, or other rights or (ii) violate any applicable Third-Party Platform Terms. Customer acknowledges and agrees that OakTech is in no way responsible for Customer Content (whether in respect of the rights to such Customer Content, its accuracy, completeness, appropriateness, or in any other manner whatsoever).
7.4. Service Data
Notwithstanding anything to the contrary herein, OakTech shall have the right to collect, store, analyze, modify, use, and publish aggregated and/or de-identified information derived from Customer Content (“Service Data”) for OakTech’s business purposes (including for software improvements, industry benchmarking, and improving OakTech’s artificial intelligence and machine learning technologies), provided that such Service Data shall not include data that can reasonably be used to identify Customer.
7.5. Security
OakTech will maintain commercially reasonable technical and organizational measures that are designed to protect the security, confidentiality, and integrity of Customer Content. Customer acknowledges and agrees that use of the OakTech Software necessarily involves the transmission of Customer Content and other data over networks that are not owned, operated or controlled by OakTech and, as such, OakTech is not responsible if any Customer Content or other data is lost, altered, intercepted, or stored across such networks. Customer further acknowledges and agrees that OakTech cannot guarantee that its or its network security providers’ security procedures will be error-free, that transmissions of Customer Content or other data will always be secure, or that unauthorized third parties will never be able to defeat OakTech’s or its network security providers’ security measures.
7.6. Prohibited Activities
Customer agrees that it shall not or shall not allow, directly or indirectly, any third party to: (a) make the OakTech Software available to anyone other than its authorized representatives, or use the OakTech Software for the benefit of anyone other than Customer, unless expressly stated otherwise in a SOW; (b) sell, resell, license, sublicense, distribute, rent, or lease the OakTech Software, or use the OakTech Software for timesharing or service bureau purposes; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms related to the OakTech Software; (d) access the OakTech Software to build a competitive product or service; (e) modify, translate, or create derivative works based on the OakTech Software except to the extent expressly permitted by OakTech or authorized within the OakTech Software; (f) remove any proprietary marks, notices, or labels of OakTech; (g) permit any user to access or use the OakTech Software in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation; (h) interrupt, or attempt to interrupt, violate, breach, or compromise the operation or security of the OakTech Software or any networks or systems; or (i) upload, use, or otherwise make available any data that contains viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature.
7.7. Service Limitations
Customer acknowledges that the OakTech Software may be unavailable from time to time due to repairs, upgrades, routine and emergency maintenance, malfunction of computer or network equipment, or other interruptions that may be out of OakTech’s reasonable control, including outages of any third-party service. OakTech reserves the right to modify or update the features and functionality of the OakTech Software, or to suspend or discontinue the OakTech Software, at its sole discretion, without any liability to Customer. In cases where OakTech deems it necessary to suspend or discontinue the OakTech Software, OakTech will use commercially reasonable efforts to give prior notice to Customer.
8. Feedback
If Customer or its employees, contractors, or agents provide feedback, suggestions, enhancement requests, recommendations, or other input regarding the Services (“Feedback”), OakTech shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to incorporate such Feedback into its products, services, and business and use such Feedback in any manner. Customer agrees that all Feedback shall be deemed to be non-confidential and non-proprietary.
9. Third Party Service Providers
OakTech may from time to time recommend third-party resources and other third-party service provides, including but not limited to contractors, attorneys, broker-dealers, (collectively, “Third-Party Resources”). Third-Party Resources are provided solely for Customer’s convenience. OakTech does not endorse or make any representations about such Third-Party Resources, and OakTech is not responsible for the accuracy, quality, or reliability of any services, information, data, opinions, advice, or statements provided by such Third-Party Resources. OakTech shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s use of any Third-Party Resources.
10. Customer Obligations
Customer shall reasonably cooperate with OakTech in connection with the performance of the Services, including by (a) providing timely access to such personnel, information, data, materials, systems, and facilities as OakTech reasonably requires to perform the Services; (b) designating a primary point of contact with authority to make decisions and provide approvals on Customer’s behalf; (c) furnishing accurate and complete information and promptly responding to OakTech’s requests for feedback, instructions, or approvals; and (d) obtaining and maintaining all consents, licenses, permissions, and authorizations necessary for OakTech to perform the Services, including with respect to any Third-Party Platforms. Customer is responsible for the accuracy and completeness of all information and materials it provides to OakTech, and OakTech shall not be liable for any deficiency in the Services to the extent resulting from Customer’s failure to perform its obligations under this Section. Customer shall use the Services and any Deliverables only for its internal business purposes and in compliance with all applicable laws.
11. Customer Cooperation
Customer agrees to cooperate with and support OakTech reasonably in the performance of the Services. Customer’s failure to comply with this Section 11 and Section 10 shall constitute a material breach of this Agreement and, without limiting OakTech’s rights under this Agreement, shall entitle OakTech to suspend performance until such failure is cured to OakTech’s reasonable satisfaction. Customer agrees that:
11.1.
Customer will inform OakTech promptly if any material information provided by it ceases to be true, accurate and complete and not misleading.
11.2.
All forecasts and statements of opinion provided by or on behalf of Customer to OakTech have been or will be made after due and careful inquiry and were or will be based on reasonable grounds.
11.3.
Customer will review and approve any marketing materials prepared in connection with a Transaction (as defined below) and ensure that at all times during any Transaction, any such marketing materials will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. OakTech will have the right to review and approve all such marketing materials, however, Customer will be solely responsible for the contents of those documents notwithstanding any review or approval by OakTech.
11.4.
This Agreement and the Services in no way constitute a guarantee that a Transaction will commence or will be successful. Customer acknowledges that it is ultimately responsible for all phases of any Transaction.
11.5.
Customer shall be solely responsible for determining, with the advice of its own legal, regulatory, tax, accounting, and financial advisers, whether any Transaction, fundraising round, securities offering, financing, or related activity complies with applicable federal and state securities laws. Customer shall not request, direct, or require OakTech to perform any act that would require OakTech to register or be licensed as a broker, dealer, investment adviser, placement agent, finder, underwriter, selling agent, securities intermediary, or similar regulated person under applicable law.
12. Compliance with Laws
12.1.
Each Party shall, at its expense, perform its obligations under this Agreement in all material respects in accordance with applicable laws. If the Services include services in connection with the purchase or sale of all or a portion of a business (a “Transaction”), then the Parties acknowledge and agree that (a) OakTech will not have the ability to bind any party to the Transaction; (b) OakTech will not, directly or indirectly, provide financing for the Transaction; and (c) OakTech will not have custody, control, or possession of, or otherwise handle funds or securities issued or exchanged in connection with, the Transaction or other securities transaction for the account of others. It is expressly understood that OakTech is not undertaking to provide any advice relating to legal, regulatory, accounting, taxation, and other specialist matters. Customer will be responsible for obtaining its own professional advice on legal, regulatory, accounting, taxation, and other specialist matters and hereby acknowledges that neither Customer nor any of its affiliates has received, or relied upon, the advice of OakTech or any of its affiliates regarding any such matters. OakTech will be given access to that advice and will be able to rely on all information, advice or other material provided by or on behalf of Customer and its professional advisors without any obligation to verify its accuracy or completeness. All services connected with OakTech’s role are provided by OakTech and not by its Representatives. All correspondence and written advice will be signed by OakTech and is not the advice of any Representatives of OakTech. If OakTech in its sole discretion determines that it desires to retain, associate or affiliate with another party to comply with state or federal regulations, Customer hereby consents to such retention, association or affiliation and agrees to take all reasonable steps and execute any documents necessary for such purpose.
12.2.
Customer acknowledges and agrees that OakTech is a technology and consulting services provider and is not acting, and shall not be deemed to be acting, as a broker, dealer, investment adviser, municipal advisor, placement agent, finder, underwriter, selling agent, financial adviser, securities intermediary, or any other regulated intermediary under the Securities Act, the Investment Advisers Act of 1940, any state “blue sky” or securities laws, or any similar federal, state, foreign, or self-regulatory organization rule or law. OakTech shall not solicit investors, recommend or advise any person to purchase or sell securities, negotiate the purchase or sale of securities, handle customer funds or securities, effect securities transactions, provide investment advice, or participate in structuring any securities offering, except solely to the extent expressly set forth in an applicable SOW to the extent it is permitted by applicable law. Customer is solely responsible for compliance with all federal, state, and foreign securities laws, including determining whether any registration, exemption, notice filing, disclosure, investor qualification, broker-dealer, investment adviser, placement agent, finder, or other regulatory requirement applies to any Transaction, fundraising round, offering, financing, or related activity. Customer shall not describe OakTech or any of its Representatives as a broker, dealer, investment adviser, placement agent, finder, underwriter, selling agent, financial adviser, securities intermediary, or similar regulated intermediary in any communication, offering material, marketing material, disclosure document, closing document, or other written or oral statement without OakTech’s prior written consent.
12.3.
OakTech may immediately suspend or terminate any Services, SOW, Transaction-related activity, or this Agreement upon written notice if OakTech determines, in its reasonable discretion, that continued performance may: (a) require registration, licensing, notice filing, qualification, approval, or other regulatory status that OakTech does not then maintain; (b) create a material risk of violation of any federal or state securities law, broker-dealer law, investment adviser law, blue-sky law, or other applicable law; (c) involve any inaccurate, incomplete, or misleading information, marketing material, disclosure document, investor communication, or transaction document; or (d) expose OakTech or any Representative to regulatory inquiry, investigation, sanction, or liability. Customer shall remain liable for all Fees, expenses, Taxes, and other amounts accrued through the effective date of suspension or termination, together with any reasonable non-cancellable commitments and wind-down costs incurred by OakTech.
13. Disclaimers
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4, THE SERVICES ARE PROVIDED BY OAKTECH TO CUSTOMER ON AN ‘AS IS’ BASIS, AND THERE ARE NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THE SERVICES OR IN CONNECTION WITH THIS AGREEMENT BY OAKTECH (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS). OAKTECH (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. OAKTECH (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS AND SUBCONTRACTORS) DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT ALL ERRORS OR DEFECTS IN THE SERVICES CAN BE FOUND OR CORRECTED. OAKTECH DOES NOT MAKE ANY REPRESENTATION OR WARRANTIES (A) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR (C) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES. FURTHERMORE, OAKTECH’S SERVICES DO NOT INCLUDE LEGAL ADVICE, CONTRACT DRAFTING, OR OTHER PROFESSIONAL SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT OAKTECH IS NOT A LAW FIRM OR BROKER, OR DEALER, AND DOES NOT PROVIDE LEGAL ADVICE, LEGAL OPINIONS, OR LEGAL REPRESENTATION OF ANY KIND. THE SERVICES ARE OPERATIONAL AND COMMERCIAL IN NATURE, AND NOTHING PROVIDED BY OAKTECH (INCLUDING ANY ANALYSIS, SUMMARY, RECOMMENDATION, OR OTHER MATERIALS) CONSTITUTES LEGAL ADVICE OR FINANCIAL ADVICE. OAKTECH RECOMMENDS THAT CUSTOMER CONSULT ITS OWN QUALIFIED LEGAL COUNSEL BEFORE ENTERING INTO, AMENDING, OR RELYING ON ANY AGREEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE FINAL FORM AND EXECUTION OF ANY AGREEMENT. OAKTECH DOES NOT WARRANT, REPRESENT, OR GUARANTEE ANY PARTICULAR RESULT, OUTCOME, SAVINGS, TERMS, OR THE SUCCESS OF ANY NEGOTIATION.
14. Indemnification
14.1.
Customer shall indemnify, defend and hold harmless OakTech and its directors, officers, employees, contractors, agents, successors and assigns, from and against any third-party claim, demand, or investigation (including by any governmental authority), and all resulting losses, liabilities, damages, costs, and reasonable outside attorneys’ fees and court costs, to the extent arising out of: (i) Customer’s breach of its representations and warranties including; (ii) any statement, representation, warranty, or communication made by Customer that is inaccurate or misleading; (iii) and Customer’s violation of applicable laws, gross negligence or willful misconduct. Without limiting the foregoing, Customer shall defend, indemnify, and hold harmless OakTech and its representatives from and against any liabilities arising out of or relating to any allegation, claim, investigation, inquiry, or proceeding that OakTech was required to register, qualify, or be licensed as a broker, dealer, investment adviser, placement agent, finder, underwriter, selling agent, securities intermediary, or similar regulated person in connection with any Transaction, fundraising round, offering, financing, or related activity, except to the extent finally determined to have resulted from OakTech’s gross negligence or willful misconduct
14.2.
OakTech shall indemnify, defend and hold harmless Customer and its directors, officers, employees, contractors, agents, successors and assigns, from and against any third-party claim or demand, and all resulting losses, liabilities, damages, costs, and reasonable outside attorneys’ fees and court costs, to the extent arising out of OakTech’s alleged or actual infringement of any third-party intellectual property rights, or (b) gross negligence or willful misconduct.
14.3.
The party indemnified pursuant to this Section 14 (the “Indemnified Party”) shall provide the indemnifying party (the “Indemnifying Party”) with prompt written notice of any claim and give control of the defense and settlement to the Indemnifying Party, and shall reasonably cooperate with the Indemnifying Party, its insurance company, and its legal counsel in its defense of such claim(s), at the Indemnifying Party’s expense. Indemnifying Party may not settle any potential suit hereunder without the Indemnified Party’s prior written approval (not to be unreasonably withheld, conditioned or delayed). Neither party will have any indemnification obligation under this Section to the extent the applicable claim arises from or relates to the Indemnified Party’s own gross negligence or willful misconduct.
14.4.
THIS SECTION 14 SETS FORTH CUSTOMER’S SOLE REMEDIES AND OAKTECH’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR DELIVERABLES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
15. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID AND PAYABLE TO OAKTECH BY CUSTOMER IN THE 6 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY ARISING FROM (I) CUSTOMER’S PAYMENT OBLIGATIONS; (II) INDEMNIFICATION OBLIGATIONS; (III) VIOLATION OF APPLICABLE LAW; (IV) MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; OR (V) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
16. Non-Solicitation
During the term of this Agreement and for one (1) year thereafter, Customer agrees not to, either directly or indirectly, interfere in any way with the relationship between the other party and any of its employees, vendors, contractors, supplier, or other business associate of OakTech (“OakTech Resources”) by soliciting, inducing or attempting to induce any OakTech Resources to leave, curtail or cease doing business with OakTech, provided that the foregoing shall not prohibit Customer from promoting public solicitations for employees, contractors or consultants not specifically directed at OakTech Resources. Notwithstanding the foregoing, if Customer directly or indirectly hires a OakTech Resource, Customer agrees to pay the other party a fee equivalent to fifteen percent (15%) of the annualized first-year guaranteed compensation of the OakTech Resource, which shall become due and payable on the first day the OakTech Resource begins performing services. The parties agree that the foregoing represents reasonable compensation for the contemplated actions.
18. Non-Disparagement
Each party agrees not to knowingly make any false statement of material fact about the other party that would reasonably be expected to materially harm the other party’s business reputation. Nothing in this Agreement restricts either party from making truthful statements, providing honest feedback, enforcing its contractual rights, complying with legal process, communicating with regulators or law enforcement, reporting possible legal or regulatory violations, or making disclosures to its professional advisors. This Section does not limit either party’s remedies for defamation, trade libel, false advertising, breach of confidentiality, or misuse of intellectual property.
19. Delays
OakTech shall not be liable for any costs or delays resulting in whole or in part from causes beyond OakTech’s reasonable control, including, without limitation, work stoppages and strikes, acts of God and natural disasters, failure of a public agency to act in a timely manner, or the acts or omissions of Customer or its employees, contractors and agents, including Customer’s failure to comply with Section 9.
20. Independent Contractor Relationship
The Agreement is not intended to be, and shall not be construed as, an agreement to form a partnership, agency relationship, employment relationship, or a joint venture between the parties. Neither party is authorized to make any representation, contract, or commitment on behalf of the other party. Customer shall have no obligation to withhold or pay income tax, workers’ compensation, pension, deferred compensation, insurance, and other employee taxes on behalf of OakTech.
21. Publicity
Customer grants OakTech the right to use Customer’s name, orally and in writing (including in promotion or marketing materials and on OakTech’s website and social media postings), and including use of the Customer’s logo in written marketing materials.
22. Successors and Assigns
Neither party shall assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of the other party in each instance such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may be free to assign this Agreement to any (a) affiliate of such party, or (b) successor entity of such party that assumes all, or a majority of, such party’s assets in writing. Any assignment in violation of this clause shall be null and void. Subject to the foregoing, this Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
23. Subcontractors
OakTech will be entitled to use subcontractors in the performance of the Services, provided that OakTech shall remain responsible for such subcontractors’ performance hereunder.
24. Notices
Except as otherwise specified in this Agreement, any notices under this Agreement must be in writing and shall be sent to OakTech by email to [_________]. Any notices to Customer shall be sent by OakTech to the Customer email address set forth in the SOW.
25. Governing Law; Venue; Jury Trial Waiver
This Agreement will be governed in all respects by the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any action or proceeding brought by either party against the other party arising out of or related to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in Austin, Texas. Each party expressly consents to personal jurisdiction and venue therein. Each party hereby waives any right to jury trial in connection with any action or dispute in any way arising out of or related to the Agreement.
26. Final and Binding Arbitration
Any claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be decided only by binding arbitration in Austin, Texas, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect, before a single arbitrator selected in accordance with such rules. Each Party will pay its own costs and attorneys’ fees, if any. However, the Prevailing Party (as defined herein) shall be entitled to recover from the losing party its reasonable Costs. The term “Prevailing Party” means the Party that successfully prosecutes an action or successfully defends against an action resulting in a judgment granting affirmative monetary, equitable, and/or declaratory relief, regardless of nominal value
27. Severability
In the event any provision of this Agreement is held to be invalid or unenforceable under applicable law, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible, and the remaining provisions of this Agreement shall continue in full force and effect.
28. Waiver
No delay or omission by either party to exercise any right occurring upon any non-compliance or default of the other party with respect to any of the terms of this Agreement shall impair any such right or be construed to be a waiver thereof.
29. Entire Agreement
This Agreement, including all addenda, exhibits, and attachments hereto, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each party. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Each party represents that, in entering into this Agreement, it has not relied on any representation, statement, or information provided by the other party or its agents that is not expressly set forth herein. Each party further acknowledges that this Agreement was negotiated at arm’s length and that it has had the opportunity to be represented by counsel. To the extent this Agreement conflicts with the terms of a SOW or any other document, the documents must be read in the following order of precedence except where specified otherwise: (a) this Agreement; (b) the SOW (as modified from time to time) with the latest date(s); and (c) any other documents expressly incorporated herein by reference.
The parties’ authorized signatories have duly executed this Master Services Agreement as of the Effective Date.
30. Exclusions
Unless expressly agreed in a separate written SOW, amendment, or engagement letter, the Services do
not include legal, tax, accounting, valuation, securities law, broker-dealer, investment banking,
placement agent, fund formation, offering-document drafting, subscription-document drafting, Form D
or Blue Sky filing, accreditation-verification, public solicitation, paid advertising, PR, in-person event
production, travel, venue, hospitality, media placement, third-party platform fees, or custody/control
of investor funds or securities.
Any potential investment review by Terra Rossa Family Office or any related investment committee is a
separate parallel process and is not part of this SOW.