Master Services Agreement for T&M
Our Master Services Agreement for Time & Material projects.
Terms, And Conditions Between <<CLIENT>> & Wednesday Solutions
<<DATE>>
This Master Services Agreement (“Agreement”) is entered into and made effective on <<DATE>> by and between
Wednesday Solutions, a partnership firm, with its registered office at Unit No 509 & 510, Clover Hills Plaza, NIBM Road, Kondhwa, Pune 411048 (“Wednesday”) which expression unless repugnant to its context shall mean and include its successors, assigns, affiliates and related entities, of the First Part; AND
<<CLIENT>> having its registered office at <<CLIENT ADDRESS>> (“Client”) which expression unless repugnant to its context shall mean and include its successors, assigns, affiliates, and related entities, of the Second Part.
Wednesday and <<CLIENT>> shall be referred to individually as Party, and jointly as Parties, where the context so requires.
WHEREAS:
Wednesday is an IT design and development Company with knowledge in specific domains and is engaged inter alia in the business of providing services in relation to Product Design and Software Development.
<<CLIENT>> desires that Wednesday to provide certain Services to Client, on the terms and conditions set forth below and as defined in the respective Statement(s) of Work
NOW, THEREFORE, in consideration of the foregoing recitals, of the mutual terms and conditions of this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree as follows:
1. Definitions
When used in this Agreement or in each Statement of Work, the capitalized terms listed in this section shall have the meaning as provided below. Other capitalized terms used in this Agreement shall have the meaning respectively assigned to them elsewhere in this Agreement or in each Statement of Work.
“Agreement” means this Master Services Agreement, its schedules, exhibits, and each Statement of Work together with all amendments as approved In Writing by the Parties from time to time.
“Commercially Reasonable Efforts” mean that the Party obliged to perform shall take all such steps and perform in such a manner as if it were acting in a determined, prudent and reasonable manner with due regard to any financial implications in order to achieve the desired result and perform the obligations set out in this Agreement and/or any Statement of Work.
“Intellectual Property Rights” mean copyright rights, trademark rights, patent rights, trade secret rights, authors’ rights, as may exist at any time, and all renewals and extensions thereof, under the laws of any state, country or jurisdiction.
“Personnel” shall mean the persons, employees, advisors and consultants (including leased consultants) of Wednesday deployed to perform Services for the Client as agreed under a relevant SOW.
“Process” shall mean procedure laid down in the relevant SOW to be followed by the Parties while the Services as agreed under the relevant SOW are being performed.
“Services” is defined as any and all work to be performed by the Wednesday for the Client specified in a relevant SOW.
“Statement(s) of Work” or “SOW” means the exhibit attached hereto, specifying the Services to be provided by Wednesday to the Client. Additionally, Statement of Work shall mean any proposal of the Client or Wednesday or any other written instrument or plan(s) or equivalent authorized communication by Writing from one Party to other Party that at a minimum (i) is signed on behalf of both Parties by their authorized representatives or agreed to between the Parties by their authorized representatives; and (ii) contains a description or type of Services and such other terms and conditions as may be mutually agreed upon by the Parties.
“Written” or “In Writing” means any communication in a written form, which shall include, without limitation, any communication by telex, facsimile, and electronic e-mail transmission.
2. Services
Performance of Services- Wednesday shall perform any Services on signing of or agreeing Statement of Work or otherwise agreeing in writing. In the event that the terms of a Statement of Work are contrary to the terms in this Agreement, the terms of the applicable SOW shall be binding and shall prevail over the terms contained in this Agreement unless and to the extent that an applicable Statement of Work explicitly provides that this Agreement is to take precedence over the said SOW and cross references the affected provisions of this Agreement.
3. Reliance on Inputs
Client at its cost shall provide Wednesday with all information, documents, tools, designs, materials, non-standard hardware and software, directions, instructions, functional requirements, specific software requirements and guidance access with appropriate rights (Inputs) that may be reasonably necessary for Wednesday’s performance of the Services All Inputs required by Wednesday shall be given in a timely manner and when provided, will be complete, accurate and up to-date. Wednesday shall rely upon any Inputs relating to Wednesday’s performance of Services provided to Wednesday by Client, or any person designated by Client. Wednesday shall in no event be liable to Client and/or any third party for any failure or defect caused due to Wednesday’s reliance upon any Inputs provided by the Client, or for any delay in which arise from any delay caused by the dependency on Client, or by the Client in providing Inputs or assistance to Wednesday or on account of any occurrence, fact or circumstance resulting from Wednesday’s reasonable reliance upon such Inputs. Further the Client agrees that it shall follow the Process laid down in the relevant SOW to enable Wednesday’s performance of Services.
4. Payment Terms
Client warrants to pay Wednesday the amounts, for the Services provided to the Client on a time and materials basis at Wednesday’s regular rates then in effect and mentioned in the applicable SOW and as per payment terms mentioned therein. Additionally, Client shall pay, unless otherwise specified in the Statements of Work, (i) Wednesday’s reasonable out-of-pocket expenses incurred as a result of Wednesday’s performance of Services; and (ii) all taxes, including without limitation, sales, service, use, excise, or value-added taxes, other than a franchise or income tax, based upon or measured by the charges as set forth in the relevant SOW.
Wednesday reserves the right to revise the rates at its discretion notwithstanding the rates agreed in the relevant SOW. Wednesday agrees to provide the Client a written intimation of thirty (30) days.
Time is of the essence with respect to payment of Wednesday’s invoices and it is an essential condition to this Agreement. Delay in payment would amount to a material breach, in which case Wednesday shall have the right to suspend the Services agreed as per the relevant SOW, terminate this Agreement and/or any relevant Statement of Work, in addition to and without waiving any other rights and remedies available at law or equity.
If Client disputes the invoice, Client shall notify Wednesday in writing and to submit appropriate documentation justifying such dispute to Wednesday as soon as it is aware of the dispute, but in no event later than thirty (30) days after the invoice is received, failing which such dispute is waived. Notwithstanding any such dispute, the Client agrees to pay the full amount of any such invoice pending the resolution of such dispute. Wednesday will respond to the Client’s written dispute within thirty (30) days of receipt of such dispute. Wednesday and Client agree to use reasonable efforts to resolving all disputes and Wednesday agrees to promptly refund any amounts due upon dispute resolution.
5. Term and Termination
This Agreement will commence on the Effective Date specified above and, shall remain in effect for a period of twelve (12) months. This Agreement will automatically renew for successive twelve (12)-month terms, unless Either Party terminates this Agreement or Statement of Work for convenience by providing a thirty (30) calendar days prior notice in Writing to the other and conveys its decision not to renew or continue the Agreement as the case maybe. In case of a breach of a material obligation under this Agreement and failure to remedy the same within a period of thirty (30) calendar days, the non-defaulting party may terminate the Agreement by proving a written notice.
Upon any such termination, Wednesday shall cease to perform Services under the relevant Statement of Work, regardless of whether such Services are completed and Client shall pay Wednesday for all Services performed through the date of termination.
Upon termination by Wednesday for non-payment by Client or any other basis permitted by this Agreement, Wednesday shall be entitled to retain output of the Services, and all right, title and interest, including, without limitation, all Intellectual Property Rights, in output of Services until such time that Client has paid Wednesday in full for Services performance by Wednesday in accordance with this Agreement and/or Statement of Work. If payment is not received or the Client’s breach is not cured within sixty (60) calendar days after written notification of default, Wednesday shall have the option to dispose of the output of Services, and all right and title thereto, by auction, private sale or other reasonable disposition, and to apply any proceeds of such sale or disposition, to that outstanding sum owed by Client to Wednesday.
6. Intellectual Property
Client shall own the rights, title and interest in and to all Intellectual Property Rights for all output from Services only upon Client’s payment in full to Wednesday for all amounts due to Wednesday for such Services. Notwithstanding the preceding paragraph, Client acknowledges and agrees that the execution of the Services will involve the use by Wednesday of its methodologies, frameworks, solutions, software, tools, systems, processes, inventions, algorithms, procedures, techniques, experience, expertise, work approaches and like information and technology which are pre-existing at the date of this Agreement or which are subsequently brought into existence independently by Wednesday other than as a result of the performance under this Agreement (“Wednesday Background Technology”). All Intellectual Property Rights associated with Wednesday Background Technology shall remain the sole and exclusive property of Wednesday and Client shall acquire no rights to the same. Wednesday reserves the right to reuse, copy, and distribute, in its sole discretion, and without royalty or other obligation, standard development tools and standard modules and routines owned or used by Wednesday to develop or execute future deliverables and/or services for other clients. Client, to the extent required by law, hereby grants Wednesday, a non-exclusive, worldwide perpetual and irrevocable license to do the same.
7. Confidentiality Obligations
For the purpose of this Agreement, the Party disclosing Confidential Information shall be referred to as the “Disclosing Party” and the Party receiving Confidential Information shall be referred to as the “Receiving Party”. The term “Confidential Information” as used in this Agreement shall mean any and all information and material that may be disclosed by the Disclosing Party to the Receiving Party in the course of this Agreement in written or otherwise tangible form which is clearly marked “Confidential” or “Proprietary” or is of such nature that the Parties in their reasonable judgment ought to consider it as confidential.
Confidential Information shall not be used by the Receiving Party other than for the purposes under this Agreement for which the Confidential Information was disclosed. The Receiving Party shall have the right to divulge the Confidential Information to its employees, Affiliates, consultants and agents on a need to know basis, who shall be bound by the confidentiality obligations specified in this Agreement to the same extent as that of the Receiving Party and Receiving Party is responsible for all acts or omissions of such employees, Affiliates, consultants and agents. The Receiving Party shall protect such Confidential Information from disclosure to third parties and shall hold it as confidential using the same degree of care as it uses to protect its own confidential or proprietary material of like importance. The confidentiality obligations specified in this Agreement shall continue for a period of five (5) years from the termination or expiration of this Agreement.
The confidentiality obligations specified in this Agreement shall not apply to any Confidential Information which:
is generally available to the public;
is in the Receiving Party's possession prior to receiving it;
is lawfully disclosed to the Receiving Party by a third party who to the best of Receiving Party’s knowledge does not bear a confidentiality obligation to the other party;
was independently developed by the Receiving Party without use of the Confidential Information;
is disclosed by the Receiving Party with the Disclosing Party’s prior approval in writing.
is required to be disclosed by law, court order, governmental authority, regulation of any recognized stock exchange or any other competent authority
The Receiving Party shall (i) promptly notify the Disclosing Party to the extent lawful and practical to enable the Disclosing Party to protect its Confidential Information, (ii) at the request and sole expense of the Disclosing Party, cooperate reasonably with the Disclosing Party’s efforts to contest or limit the scope of the order or directive and (iii) limit any disclosure to the minimum that is necessary to comply with the regulation, order or directive.
8. Independent Parties
This Agreement is neither intended to nor will it be construed as creating a joint venture, partnership or other form of business association between the parties, nor an obligation to buy or sell products using or incorporating the Confidential Information.
9. Disclaimer
Except as expressly set forth herein, both Parties hereby disclaim all warranties to each other and all third-parties, with respect to express, implied, statutory warranties including, without limitation, with respect to the Services or (and all portion or components thereof), implied warranties of merchantability, quality, non-infringement, and fitness for a particular purpose.
10. No Waiver
The failure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party will not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right hereunder.
11. Governing Law
This Agreement will be governed by the laws of India without reference to conflict of law principles if any. Any disputes arising from this Agreement shall be subject to the jurisdiction of the courts in Mumbai, Maharashtra.
12. Entire Agreement
This Agreement constitutes the sole and entire agreement between the parties with respect to the Confidential Information and all restrictions thereon; it supersedes any and all prior or contemporaneous oral or written agreements, negotiations, communications, understandings and terms, whether express or implied regarding the Confidential Information, and may not be amended except in a writing signed by a duly authorized representative of the respective parties. Any other agreements between the parties, including non-disclosure agreements, will not be affected by this Agreement.
13. Liability
The Parties mutually agree to waive, to the fullest extent permitted by law, any claim, liability, prayer or recovery of any indirect, incidental, consequential, special, exemplary, punitive, restitution or disgorgement damages, reliance damages, speculative, damages, losses, damages, costs or expenses or any lost profits or lost contracts, lost goodwill, lost business, lost general overhead, loss of reputation, loss of market share, loss of data, loss of anticipated savings, business interruptions, loss of the use of money, interest payments incurred to third parties, and such like claims of damages losses, damages, costs or expenses from the other party and any third party in connection with or arising out of this agreement (even if such Party has been advised of the possibility of such damages, losses, costs or expenses whether based on an action or claim in contract, equity, negligence, tort or any other theory of law). In consideration for the fees as set forth in this agreement, the Parties mutually agree that either Party’s total liability under this Agreement and any relevant statement of work shall be limited to the total fees paid by the client to Wednesday in the preceding six (6) months under the said statement of work, under which the liability or claim for damages arose.
14. Force Majeure
A Party shall not be liable for any event that is beyond the control of that Party or which could not have been reasonably foreseen, including without limitation, acts of god, man or state, civil unrest, terrorism, explosions, floods, hurricanes, earthquakes, mechanical breakdowns, strikes, labor unrest, breakdown in essential utilities, medical or other emergencies (Force Majeure).
15. Publicity
Wednesday shall be entitled to advertise and represent that the Client is a customer of Wednesday and the broad nature of work performed by Wednesday for the Client. Wednesday’s publicity shall not disclose any Confidential Information.
16. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. An electronic copy of an executed signature page delivered by facsimile transmission or e-mail shall be binding to the same extent as an original copy of an executed signature page delivered otherwise. A Party that delivers an electronic copy of an executed signature page agrees to later deliver an original counterpart to the other Party if requested.
17. Headings
The headings used in this Agreement are for convenience and identification only, and shall not be deemed to limit, amplify, or define the contents of the respective sections or paragraphs to which they pertain.
18. Severability
If any provision or part of this Agreement shall be determined to be illegal, invalid or unenforceable, that part shall be severed from this Agreement and the remaining parts shall be valid and enforceable.
19. Protection of Personnel’s personal information
The client agrees that Wednesday will not share any personal information of the Personnel with the Client. The client agrees that it will abide by the Process laid down in the relevant SOW.
For Client | For Wednesday |
Name | Name |
Designation | Designation |
Date | Date |
Place | Place |
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