Utilimarc Master Services Agreement
Last Updated April 2023.
This Utilimarc Master Services Agreement (“Agreement”) is effective as of the last signature on a SOW between the parties (the “Effective Date”) that incorporates this Agreement and is by and between Utilimarc, LLC, a Minnesota limited liability company (“Utilimarc”), and the client identified in the SOW (“Client”).
Utilimarc provides data analytics and telematics services, consulting services, and software and other technology solutions. Client has engaged Utilimarc to provide the services and deliverables described in written Statements of Work that may be agreed upon and executed by Utilimarc and Client from time to time (each, a “SOW”). Utilimarc is willing to provide such services and deliverables under the terms and conditions provided herein.
Therefore, the parties agree as follows:
1. Services. Utilimarc shall provide the services and deliverables described in this Agreement and each SOW (collectively, the “Services”), in exchange for the fees and other amounts set forth in the applicable SOW (the “Fees”). Each SOW must identify this Agreement and shall be subject to, incorporated in, and made a part of this Agreement. A SOW will contain additional terms and conditions. In the event of any conflict or inconsistency between the provisions of this Agreement and a SOW, the provisions of the SOW shall control for that SOW. If, after the Effective Date, Client seeks new Services or updates to existing Services, the parties will enter into a new SOW.
2. Fees. Client will pay Utilimarc the Fees set forth in each SOW at the times set forth therein. If no time or schedule for payment is set forth in a SOW, the Fees will be due and payable within thirty (30) days after receipt of an invoice from Utilimarc. Delinquent payments may bear interest at the rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Utilimarc in collecting such delinquent amounts.
3. Taxes. Client is responsible for any taxes, and Client will pay Utilimarc for the Services without any reduction for taxes. If Utilimarc is obligated to collect or pay taxes, the taxes will be invoiced to Client, unless Client provides Utilimarc with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Client Responsibilities. In addition to its other obligations set forth herein, Client shall:
A. Promptly provide to Utilimarc all information and data (collectively, “Client Data”) reasonably requested by Utilimarc in connection with Utilimarc’s Services hereunder at the times reasonably requested by Utilimarc. Client will provide Client Data in the form and format as requested by Utilimarc and Client is responsible for the accuracy of Client Data. For Client Data consisting of personal information or data collected from the tracking of Client’s employees, Client is responsible for providing notices and obtaining consents required under applicable law associated with its disclosure to or collection by Utilimarc, and Utilimarc’s use, storage, and transfer of such information and data, and such notices and consents must sufficiently inform data subjects of the purposes for which personal information is collected. A delay in providing any Client Data or the provision of Client Data in a form or format different than that requested by Utilimarc may result in a delay to the delivery date of the Services and may result in an increase in the charges to Client for the Services.
B. When reasonably requested by Utilimarc, provide trained and competent personnel to assist Utilimarc in connection with the performance of the Services. Utilimarc shall have no liability or responsibility for any failure of Client to perform any of its obligations or for any delays in performance by Utilimarc caused by any failure of Client to perform any of its obligations. In the event Client purchases Third-Party Services (as defined below), Client consents to Utilimarc’s receipt of Client Data from the third party for use by Utilimarc in accordance with the terms of this Agreement.
5. Utilimarc’s Use of Client Data. Where the Services include benchmarking services, Utilimarc may include anonymized Client Data as part of Utilimarc’s benchmarking reports and services, current and future, for other clients. Client hereby grants permission to Utilimarc for such use during the term of this Agreement and forever thereafter. Utilimarc will disguise the identity of Client and any individuals when using Client Data. Utilimarc may exclude Client Data or any other party’s data from a comparison group for any reason, in its sole and absolute discretion. Utilimarc shall have the right to use, collect, and distribute data generated by the Services (or derived from Client’s use of the Services) and Client Data in an aggregated, de-identified form for the purposes of Utilimarc’s providing or maintenance of, improvement to, and operation of the Services or for any new or different products or services.
6. Client’s Use of Reports. Client may use any reports, dashboards, or materials included with the Services and the information contained in any such report, dashboard, or materials only for its own internal business purposes and as set forth herein. Except as set forth in a SOW, Client will not sell, license, lease, distribute, or disclose any report or materials or any information contained therein to any third party.
7. Term and Termination. The term of this Agreement shall commence on the Effective Date and continue thereafter until the expiration or termination of the latest-ending SOW. The expiration or termination of a SOW shall not affect any other SOW, and shall not terminate this Agreement with respect to other SOWs that remain in effect. In addition to any other termination rights specified elsewhere in this Agreement or a SOW, any SOW can be terminated if a party provides written notice of a breach of this Agreement and/or the SOW, and the breaching party fails to cure the breach within fifteen (15) days after written notice of the breach is provided. The termination of this Agreement or a SOW shall not affect Utilimarc’s entitlement to payment of Fees for Services provided prior to termination of this Agreement or the applicable SOW.
8. Intellectual Property. As between the parties, Client owns the Client Data and any custom written reports provided by Utilimarc to Client. However, Utilimarc shall otherwise be the exclusive owner of all right, title, and interest in and to the Services and in and to all software, technology, materials, information, data and items related to the Services including, but not limited to, any dashboards, any and all surveys and assessment questions, any analysis or report generated from Client Data, compiled data, all underlying processes, techniques, trade secrets, and analytical concepts under which Utilimarc performs the Services, methodologies and processes used by Utilimarc to perform the Services, any other work product of Utilimarc, Utilimarc’s website and platforms, any proprietary information of Utilimarc and any other works, extensions, enhancements or applications derived therefrom, supporting documentation, as well as any and all trademark, service mark, trade dress, copyright, or other intellectual property rights in any of the foregoing. This Agreement does not grant Client any rights in or to the Services or any of its components except as specifically set forth herein or in a SOW. Utilimarc reserves all rights in and to the Services not expressly granted under this Agreement.
9. Confidentiality. During the term of this Agreement and after termination of this Agreement, Client expressly agrees to keep any assessment questions confidential, to refrain from disclosing any such materials or questions to any third party, and refrain from copying or uploading any such materials or questions into any electronic system.
10. Unauthorized Use; Restrictions. Client may not, and may not permit any third party to, use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Client will use commercially reasonable efforts to prevent unauthorized access to and use of the Services and to terminate any unauthorized use. Client will promptly notify Utilimarc of any unauthorized use of, or access to, the Services of which it becomes aware. Client will not, and will use commercially reasonable efforts to make sure a third party does not: (a) attempt to reverse engineer, disassemble, or decompile the Services or any component; (b) attempt to create a substitute or similar service through use of, or access to, the Services; (c) modify, tamper with, copy, translate, or otherwise create derivative works of the Services or any part thereof; (d) use the Services to store or transfer any data that is controlled for export under export control laws; or (e) use the Services in any manner that violates any law, rule, or regulation.
12. Suspension of Cloud Services. Utilimarc may suspend Client’s access to and use of the Cloud Services without prior notice if: (a) Utilimarc is not in receipt of the applicable Fee within thirty (30) days of the date of invoice; or (b) Utilimarc has reason to believe that Client is engaging in any activity prohibited or not authorized under this Agreement or the Policies or under the terms and conditions of a third party if the Client is using Third-Party Services. Upon suspension of Cloud Services to Client, Utilimarc shall provide notice to Client of the reason for such suspension.
13. Third-Party Services. Utilimarc may provide for use by Client certain services sourced from third-party providers (the “Third-Party Services”). Such Third-Party Services shall be identified as such on the SOW and may require the payment of additional fees to Utilimarc, or directly to such third-party provider. Client’s access and use of Third-Party Services are subject to separate terms and conditions required by such third-party providers, are not deemed part of the Services, and are not governed by this Agreement. A copy of or link to such terms and conditions will be included in the applicable SOW or provided directly by such third-party provider. No third-party terms and conditions shall expand Client’s rights or Utilimarc’s obligations under this Agreement. UTILIMARC DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SERVICES AND DOES NOT HAVE ANY RESPONSIBILITY OR LIABILITY TO CLIENT FOR THIRD-PARTY SERVICES AND EXPRESSLY DISCLAIMS ANY WARRANTIES FOR SUCH THIRD-PARTY SERVICES, EXPRESS, IMPLIED OR STATUTORY.
A. By Client. Client and its successors and assigns shall indemnify, defend, and hold harmless Utilimarc and its successors and assigns from and against and in respect of any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including reasonable attorneys’ fees, that Utilimarc may incur or suffer, which arise, result from or relate to the: (i) Client’s breach of any of its representations or warranties; or (ii) Client’s breach of or failure to perform any of its obligations.
B. By Utilimarc. Utilimarc will defend against claims, demands, and causes of action by third parties and will pay the resulting judgments, fines, settlements, court costs, and reasonable attorneys’ fees to Client for claims alleging that the Cloud Services infringe a U.S. patent, copyright, or trade secret; except that Utilimarc will have no obligation to indemnify if the claim arises because of: (i) Client’s breach of any of its representations or warranties; (ii) Client’s breach of or failure to perform any of its obligations; (iii) Client Data; (iv) third party hardware or Third Party Services; or (v) the combination of the Cloud Services with any product, software or technology not provided by Utilimarc. Client will provide timely notice of a claim for which it seeks indemnification and will provide reasonable assistance to Utilimarc. If the Cloud Services, or any portion thereof, becomes the subject of an infringement claim, Utilimarc may, at Utilimarc’s option and expense: (1) obtain the right to continue use of the alleged infringing portion of the Cloud Services; (2) replace or modify the alleged infringing portion so that the Cloud Services are no longer infringing; or (3) terminate the applicable SOW for the Cloud Services. This Section 16(b) states Utilimarc’s sole liability to Client, and the Client’s sole and exclusive remedy for, any type of claim described in this Section 16(b).
17. Limitation of Liability. The total liability of Utilimarc under this Agreement will not exceed the total amount received by Utilimarc from Client under the applicable SOW during the twelve (12) month period immediately before the claim which gave rise to the liability. THE FOREGOING LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER AND IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE.
18. Exclusion of Certain Damages. EXCEPT FOR CLIENT’S INTENTIONAL BREACH OF SECTIONS 6, 9, OR 10, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR COVER DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOST REVENUES, SAVINGS, LOST DATA, OR LOSS OF USE OR GOODWILL OR OTHER INTANGIBLE LOSSES) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES OR ANY TELEMATICS DEVICES, CLOUD SERVICES, THE COST TO PROCURE SUBSTITUTE GOODS AND SERVICES, UNAUTHORIZED ACCESS TO OR ALTERATION OF CLIENT DATA, STATEMENTS OR CONDUCT OF ANY THIRD PARTY, OR ANY OTHER MATTER AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE.
19. Exclusion of Warranties. UNLESS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ANY TELEMATICS DEVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. UTILIMARC MAKES NO OTHER WARRANTIES AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
20. Nature of Relationship. Utilimarc will provide the Services as an independent contractor and not as an employee, agent, representative, or partner of Client. Neither party has the authority to bind the other or to incur any liability on behalf of the other, nor to direct the employees of the other. As an independent contractor, Utilimarc will be responsible for the payment of all income or other taxes incurred as a result of compensation paid to it by Client. In addition, Utilimarc and Client shall be separately responsible for carrying workers’ compensation insurance on themselves and their employees and agents.
21. Subcontractors. Utilimarc may subcontract the performance of the Services under this Agreement; provided that Utilimarc shall remain responsible for the performance of any such subcontracted Services as if performed by Utilimarc.
22. Expenses. Upon the submission of receipts, Client shall reimburse Utilimarc for all reasonable and necessary travel expenses that have been approved in advance by Client, and that are incurred by Utilimarc while performing the Services. Preapproved, reasonable travel expenses include, but are not limited to: actual airfare, hotel accommodations, and ground transportation costs, and a per diem for meal and incidental expenses (according to then-current federal per diem rates).
23. Publicity. With Client’s approval, Utilimarc may prepare and issue a press release referring to Client and relating to the signing of this Agreement, the general scope of the relationship, and the Utilimarc solution(s) provided under this Agreement.
24. Assignment. Client may not transfer or assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Utilimarc. Utilimarc may transfer or assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Client to an affiliate or successor-in-interest as a result of a merger or consolidation, or in connection with the sale or transfer of all or substantially all of its business or assets to which this Agreement relates (a “Permitted Assignee”) and provided that such Permitted Assignee agrees to be bound by the terms of this Agreement.
25. Remedies. Injunctive or other equitable relief shall be a remedy available to either party in the event of a breach of any provision of this Agreement by the other party, but such remedy shall not be the exclusive remedy available to the parties.
26. Website References. References to URLs or websites in this Agreement or an SOW include any successor URLs or websites designated by Utilimarc.
27. Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
28. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, without giving effect to the rules and principles of such jurisdiction regarding conflicts of laws. For purposes of resolving conflicts related to or arising out of this Agreement, the parties consent to the jurisdiction of and venue in the federal and state courts of the State of Minnesota, located in Hennepin County, Minnesota.
29. Entire Agreement; Amendments. This Agreement, including the Policies and any SOWs and any terms and conditions therein and attachments thereto, contains the entire agreement between the parties with respect to the subject matter hereof and replaces, supersedes, and nullifies all prior proposals, agreements or arrangements between the parties relating to such subject matter. Except for the Policies, which Utilimarc has the right to change on its own from time to time, no amendments, additions, or deletions to this Agreement will be valid unless made in writing and signed by the parties hereto. The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding SOWs) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW (for those services only), (2) the body of this Agreement, (3) Data Security Exhibit, and (4) the Policies.
30. Captions. Paragraph and section titles and other headings contained in this Agreement are for convenience only and will not be deemed a part of the context of this Agreement.
31. Force Majeure. In no event will Utilimarc be liable or in breach of its obligations under this Agreement as a result of any delay or failure to perform, or any interruption of performance, caused by an event beyond Utilimarc’s reasonable control, including without limitation, acts of third parties providing Third-Party Services, acts of God, war, acts of terror, pandemic, epidemic or national health crisis, security breaches, strikes, government acts or intervention, electrical failures, accidents by electrical failures, labor or other legal disputes, shortages of materials and supplies or any other event generally regarded as an event of force majeure.
32. Notices. Any notices required or permitted to be given under this Agreement or a SOW shall be sufficient if in writing and personally delivered or sent by certified mail or express courier to the other party at its address set forth in the SOW, or at such other address as the parties shall designate in writing by personal delivery, certified mail or express courier.
33. Waiver. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing. Any waiver by either party of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.
34. Survival; Severability. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
35. Execution. An SOW may be executed in one or more counterparts, each of which shall be deemed an original and to constitute one and the same instrument. The exchange of a fully executed SOW (in counterparts or otherwise) by email, Docusign or other means of electronic or digital signatures, fax, or other electronic means shall be sufficient to bind the parties to the terms and conditions of the SOW and this Agreement.