Master Services Agreement
This Master Services Agreement (this “Agreement”) is made and entered into upon execution of an Engagement (as defined below) into which this Agreement is incorporated by reference (“Effective Date”) between Helium Solutions, LLC, a Texas limited liability corporation having a principal place of business at 4200 San Jacinto St, Houston, TX 77004 (“Provider”), and the entity referred to as “Client” listed and named on the Engagement Letter (“Client”). Provider and Client may also be referred to herein individually, as a “Party” and collectively as the “Parties”.
NOW THEREFORE this Agreement witnesses that, in consideration of the mutual covenants and agreements herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Engagement and Statement of Work
1.1. The Client agrees to engage Provider to perform the work as set out in the Engagement incorporated by reference (“Effective Date”). Specific assignments shall be authorized by the Client and agreed to by Provider to be executed for each assignment as specified. The Parties agree that the Engagement may be amended from time to time provided that both parties agree in writing to the amendments.
1.2. Each Engagement incorporated by reference to this Agreement shall set forth the scope of the project, expected deliverables and any other information necessary to the project as agreed by the parties hereto.
1.3. Provider will directly perform the services specified in this Agreement.
2. Term
2.1. Subject to the terms and conditions of this Agreement, Provider will be engaged by the Client commencing on the date set out in the Engagement (the “Effective Date”) and on a month-to-month basis thereafter, unless terminated earlier in accordance with Section 10 of this Agreement (“Termination”).
3. Covenant
3.1. Provider warrants that it will perform its services in a good and workmanlike manner consistent with the organization’s skill, expertise, and experience.
4. Remuneration
4.1. Provider shall be paid in accordance with the terms set out in the Engagement incorporated by reference.
4.2. If a deliverable is late because of reasons outside the control of Provider, the schedule will be adjusted to a mutually agreeable revised target date.
5. Acknowledgements
5.1. The Client acknowledges that Provider has years of experience and subject matter expertise in the areas for which the Client has contracted Provider. The use of this general knowledge by Provider is not restricted by this Agreement and can be used by Provider for purposes not limited to the Client provided such purposes do not conflict with the terms of this Agreement.
5.2. Provider acknowledges that the Client will be the exclusive owner of any intellectual property or proprietary marks developed specifically for the Client during the Term of this agreement, and licensed, sold, marketed or used by the Client. Provider acknowledges that the Client will be exclusively entitled to make applications for registration of all such rights, in the Client’s sole discretion, in any jurisdictions that the Client deems necessary.
6. Confidentiality
6.1. Provider recognizes and understands that as a result of the performance of its responsibilities under this Agreement that Provider will become knowledgeable with respect to a wide variety of non-public information concerning the Client’s business (such as, for clarification, but not limited to, the implementation strategies of technology, marketing strategies and partnerships) which could adversely affect the Client’s best interests if disclosed to any person. Therefore, Provider agrees that except with the Client’s express written permission, Provider will not disclose such non-public information to any unauthorized person.
7. Non-Competition and Non-Solicitation
7.1. Provider will not, during the Term of this Agreement or during any subsequent term and for an additional period thereafter of one year (the “Period of Non-Competition”) either directly or indirectly in any manner whatsoever:
a) solicit for employment, or aid in the solicitation of employment of, any person who is, at the time of such solicitation, employed by the Client, or directly or indirectly induce any such person to leave his or her employment with the Client; or
b) solicit or aid in the solicitation of business competitive to the activities of the Client from any person who is at the time of such solicitation, or who has been within the six months prior to such time, a customer of the Client.
7.2. Nothing in this Section 7 prevents Provider from providing consulting services to the Client’s customers in areas that are not competitive with the Client’s business activity as described in section 7.1.a), after the Term of this Agreement.
8. Intellectual Property
8.1. Provider acknowledges that the Client has a proprietary interest in the work done by them.
8.2. The Client, along with its successors and assigns, shall be entitled to and shall own as its exclusive property, the results, proceeds, inventions, improvements, designs and services rendered by Provider in whatever stage of completion (the “Work Product”), including all research, programs, designs, ideas, concepts, models, manuals, procedure guides or other tangible or intangible work product.
Without limiting the foregoing, Provider acknowledges that the Client owns any and all copyright, patents, trade-marks, industrial designs and any associated applications or registrations and any and all common law intellectual property rights as well as any and all other intellectual property rights in the Work Product.
8.3. The Client shall be deemed the author of the Work Product and is entitled to the copyright therein (and all renewals and extensions thereof), and the full ownership of the original and all copies of the Work Product prepared by Provider.
8.4. Provider hereby assigns and, in the future, agrees to assign their entire worldwide right, title and interest in and to the intellectual property rights described herein to the Client. Provider hereby waives all rights that cannot be assigned, including moral rights in any Work Product. The foregoing is inclusive of a full assignment to the Client of all now known or hereafter existing rights of every kind throughout the universe, in perpetuity and in all languages, pertaining to the Work Product. The Client shall have the right to dispose of the same or make any or all uses thereof as it, at any time and in the exercise of its sole judgment and discretion, may desire.
8.5. Provider agrees that they shall not, and shall not assist any other party to, attempt to re-create or reverse-engineer any source code, programming information or software programs developed for, or owned by the Client.
8.6. Provider further agrees to execute, without further consideration but at the Client’s expense, any further assignments, applications or other documents as requested by the Client, its successors, assigns or legal representative, to vest in the Client any intellectual property rights described herein or to record the transfer of ownership of any of the intellectual property rights described herein from them to the Client or to the Client’s successors, assigns or legal representatives, as the case may be.
8.7. Upon termination of this Agreement for any reason, Provider agrees to submit to the Client all research, designs, specifications, and any other Work Product or information which pertains to the Work Product. All materials provided by the Client, its affiliates, division, parents, or subsidiaries, including the Client characters, logos, trademarks, copyrights, merchandise, market research data, customer or other surveys, and ideas, shall at all times remain the sole and exclusive property of the Client, and no derivative or ancillary use hereunder shall be deemed to give Provider or any third party any rights thereto.
8.8. Provider further agrees that they will not make use of any intellectual property or other proprietary knowledge or information belonging to other individuals or entities in performing their work for the Client.
8.9. The expiration, termination, cancellation, or breach of this Agreement by any party on any grounds shall not affect the Client’s exclusive ownership of the Work Product developed hereunder, notwithstanding any other provision of this Agreement.
9. Independent Contractors
9.1. The relationship of the parties hereto is that of independent contractors. Under no circumstances shall any employees of one party be deemed to be the employees of the other for any purpose. Each party shall pay all wages, salaries, office expenses and other amounts due its respective employees relative to this Agreement and shall be responsible for all obligations respecting them relating to income tax withholdings, employment insurance premiums, workers’ compensation, health care and pension plan contributions and other similar responsibilities. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other party. Nothing contained herein shall be construed as creating an agency, joint venture, consortium or partnership between the parties.
10. Termination
10.1. Either party may terminate this Agreement at any time upon 30 days written notice to the other party. However, the obligations of Provider in sections 6, 7, and 8 survive such termination for the period of time specified therein.
10.2. In the event that either party materially breaches or defaults any of its obligations hereunder, and such breach or default has not been remedied within 30 days after written notice is given to the defaulting party specifying the breach or default, the party not in default may by written notice terminate this Agreement, as of the date specified in such notice.
10.3. Upon termination of this Agreement for any reason, Provider shall only be entitled to receive the Remuneration owing to it up to the date of termination.
11. Indemnity
11.1. Provider hereby indemnifies and agrees to hold harmless the Client and its employees, officers and directors from and against any and all suits, claims, demands and actions, and any liabilities, damages or expenses resulting therefrom, including solicitor/client costs, arising out of or relating to any breach of or failure to perform the terms of this Agreement by Provider, or any breach of the their representations, warranties, covenants or agreements contained in this Agreement.
12. Assignment and Inurement
12.1. This Agreement will be binding upon and ensure to the benefit of the parties hereto and their respective successors and permitted assigns.
13. Waiver or Modification
13.1. No failure or delay of either party in exercising any power or right hereunder will operate as a waiver thereof nor will any single or partial exercise of such right or power preclude any other right or power hereunder.
13.2. No amendment, modification or waiver of any condition of this Agreement or consent to any departure therefrom will in any event be effective unless the same will be in writing signed by the Company.
14. Time of the Essence
14.1. Time will be of the essence hereof.
15. Governing Law
15.1. The laws of the state of Texas will govern this Agreement and its application and interpretation.
16. Taxes
16.1. In the event that the IRS or other applicable government department or agency seeks from the Client or any director, officer or employee of the Client, any taxes owing in relation to Provider’s services pursuant to this Agreement, Provider agrees to indemnify the Client and all of its directors and officers, the full amount of such taxes (including any applicable interest or penalties), within 30 days of the Client claiming such taxes from them. Provider further agrees that the Client may set off an amount equal to such taxes, interest and penalties from any amounts owed to them pursuant to this Agreement.
17. Notices
17.1. Any material notices, requests, demands or other communications by the terms hereof required or permitted to be given by one party to any other will be given in writing by registered post, personal delivery or by email or similar form of communication addressed to such other party or delivered to such other party at the address shown on the first page hereof or such other address as may be specified by either party in writing. Demands or other communications will be deemed to have been received, if sent by registered post, the date of acknowledged receipt in writing by or on behalf of the addressee, if sent by personal delivery, when delivered or, if sent by email or similar form of communication, upon receipt by the sender of electronic confirmation of completion of the transmission showing the correct answer back or other similar identification of the addressee.
17.2. Notwithstanding the above, any notice sent by email or other form of electronic delivery shall not be effective until the notice is also delivered personally or sent by registered mail or courier.
18. Invalidity
18.1. The invalidity, illegality or unenforceability of any provision hereof will not in any way effect or impair the validity, legality or enforceability of the remaining provisions hereof.
19. Counterparts
19.1. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument.