Terms & Conditions
Last Updated: 02/15/2023
BIZBRAIN TECHNOLOGIES LLC
Master Services Agreement
This Master Services Agreement (hereinafter this “Agreement”), together with any related order form or statement of work (SOW), which this Master Services Agreement is explicitly incorporated into by reference, constitute “the Agreement.” The Agreement is between Client or Customer as set forth in the SOW or Order Form (hereinafter “Client” or “Customer”) and by and between Bizbrain Technologies LLC., a Florida Limited Liability Company, having its principal office at: 34 NE 101st Street, Miami Shores, FL 33138 (hereinafter “Company” or “Employer” or “Bizbrain”) its subsidiaries, affiliates, and successors.
In consideration of the mutual promises, representations, and convenants set forth herein, the parties hereto agree as follows:
I. Work Orders, Services, and Deliverables
A. Bizbrain shall provide services (“Services”) as set forth in this Agreement and/or through individual service engagements performed under this Agreement defined by a Work/Change Order (“Work Order” or “Order”).
Each Work Order will constitute a separate contract under this Agreement. Each Work Order shall be in writing, agreed to, and properly executed by the parties.
B. Each Work Order shall specify, at a minimum, the following:
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- All fees, costs, and related expenses;
- A project manager for each party shall be the duly authorized representative of such party for the purposes of project management and communications between the parties.
- The Order shall incorporate any Blueprint, if applicable, and shall constitute the complete and exclusive definition and description of the Professional Services. The Order will include the following elements: (a) task description; (b) deliverables and schedule; (c) completion and acceptance criteria for the deliverables; (d) pricing, (e) customer defined requirements; and (f) any special or other terms.
C. Either party may propose a change to an Order by delivering such request to the other party in writing. Each party will evaluate a proposed change to the Order in good faith and will respond in writing within a reasonable time. Bizbrain will determine the impact of any requested or recommended change to the price or schedule for the Professional Services and advise Customer in writing of such impact. Any change to the Order will only become effective upon the execution by both parties of an amendment to the Order. Unless otherwise agreed upon by the parties, until such time as such amendment is effective, Bizbrain will continue to perform, and Customer shall continue to pay for, the Professional Services in accordance with the Order.
II. Customer Responsibilities
A. Customer represents that (a) the information (including Confidential Information) supplied by Customer and used by Bizbrain in preparation of an Order is accurate, current and complete; and (b) it has, and will continue to have during the period of performance of the Professional Services, such legal right and authority to provide Bizbrain with access and use of all software and systems as Customer may be required to provide to Bizbrain in an Order. Customer acknowledges that Bizbrain is not liable for any hardware, software, or any other items or services provided to Customer by any persons other than Bizbrain, except as set forth in the Agreement and any statement of work thereto. Customer shall promptly notify Bizbrain of any anticipated delays or deficiencies in Customer’s responsibilities and shall provide prompt assistance in resolving any such delays or deficiencies to Bizbrain’s reasonable satisfaction. In the event Bizbrain determines the information, equipment, software, assistance or payments to be provided by Customer are delayed, inaccurate or incomplete, Bizbrain reserves the right to stop work until Customer remedies such delay, inaccuracy or incompletion to Bizbrain’s reasonable satisfaction.
B. Customer acknowledges they have a duty to review Deliverables. Customer shall promptly notify Bizbrain within the timeframe set forth in the Order or within five (5) business days of delivery of a Deliverable, whichever later, whether Customer disagrees that the deliverable conforms to the requirements set forth in the Order. Customer shall specify in sufficient detail the nature and scope of any alleged non-conforming Deliverable. Upon receipt of such notice, Bizbrain shall act diligently to review, analyze, and reasonably correct an alleged deficiency. Customer shall not unreasonably withhold approval of deliverables and corrected deficiencies. In the event that Customer does not notify Bizbrain to the contrary within the later of the timeframe set forth in the Order or five (5) business days from delivery, the Deliverable(s) shall be deemed accepted and approved by Customer.
III. Staffing and Personnel
A. Bizbrain shall have the right in its discretion after consultation with Client to determine which professional staff members shall be assigned to perform the Services. Bizbrain acknowledges that continuity of qualified resources was and remains an important factor in Client’s decision to use Bizbrain to provide the Services and the ability of resources of Bizbrain to remain on the assignment to completion is an important factor in Bizbrain’s determination of who to assign.
Bizbrain may replace any resource of Bizbrain's, provided that (i) the resource selected by Bizbrain to replace such resource shall have equivalent or better qualifications to perform the Services, and (ii) the replacement does not materially reduce Bizbrain’s ability to carry out the Services to be performed for Client.
B. In the event Client is dissatisfied with the services of any resource provided by Bizbrain, Client will notify Bizbrain in writing and Bizbrain shall promptly make a good faith attempt to resolve any reasonable concerns.
IV. Non-Solicitation
A. During the term of this Agreement and for twelve (12) months following the termination of this Agreement, Bizbrain will neither (i) directly or indirectly hire as an employee or contractor, any employee who is or was employed by Client during the term of the Agreement, unless expressly agreed to in writing by Client.
B.During the term of this Agreement and for twelve (12) months following the termination of this Agreement, Client will neither (i) directly or indirectly hire as an employee or contractor, any employee or contractor who is or was assigned by Bizbrain to perform the Services, unless expressly agreed to in writing by Bizbrain.
C. For purposes hereof, the use of general advertisement to hire shall not be deemed to be solicitation of employment.
V. Site of Services
The Services will be performed for Client at their office(s) and address(es) will be listed in the accompanying Work Order.
VI. Invoices, Payment, and Rates
A. Unless otherwise agreed to in writing and submitted as an appendix or Work Order to this Agreement, Services will be provided on a time and materials basis.
B. Actual hourly or daily costs may be billed to Client based on the level of the resource as identified in the Work Order. Bizbrain may not increase the rate of a resource or Services without the consent of Client and the execution of a new Work Order or Addendum to an existing properly executed Work Order. However, Bizbrain reserves the right to modify such hourly and daily rate pricing on an annual basis with thirty (30) days’ prior, written notice to Customer. Any Professional Services requested by Customer and not included in the Order may be provided by mutual agreement and at Bizbrain’s then-current rates.
C. Unless otherwise indicated in a Work Order, invoices for services and expenses shall be rendered every two weeks, or upon completion of the services if the duration of the Work Order is less than two weeks. Payment will be made within fifteen (15) days from the date the invoice is received by Client. For payments received beyond fifteen (15) days, a late fee of 1.5% per month, or the highest rate allowable by law (whichever is higher) will be imposed. All payments will be made in U.S. dollars and be exclusive of any local taxes. If payment is not received within 15 days of the date of the invoice, Bizbrain may immediately stop all work. If payment is still not received within thirty (30) days, Bizbrain, in its sole discretion, may elect to terminate this Agreement and at such time, Client understands and acknowledges that they shall be deemed to be in material breach of this Agreement.VII. Expenses
A. All hourly and daily rates will be considered exclusive of any local taxes and all job-related expenses. Additional expenses resulting from business travel, lodging, or meals will be reimbursed by Client. A copy of Client’s current travel expense reimbursement guidelines shall be provided to Bizbrain and its terms shall not be subject to unilateral change by Client unless Bizbrain is provided with a thirty day (30) written notice along with a copy of the new travel expense reimbursement guidelines and such changes are approved by Bizbrain. Even after such approval, the travel expense reimbursement guidelines shall not be applied retroactively and shall not affect any Order already in place unless agreed to by both parties.
B. Upon mutual agreement, extraordinary expense items will be paid by Client. Such items may include, but not be limited to out-of-town travel required by Client, specialized hardware or software required by Client.
C. Receipts must be retained by Bizbrain for any expenses above $25 and such receipts must be made available to Client upon request.
VIII. Term and Termination
A. This Agreement will be in effect until terminated by mutual consent, by either party as set forth in this Section 7, or by timely completion of this Agreement or an individual Work Order for the Services and portion described in this Agreement and Work Orders.
B. Either party may terminate this Agreement, with cause, upon thirty (30) days prior written notice to the other party. Additionally, either party may terminate this Agreement, without cause, upon sixty (60) days prior written notice to the other party.
C. In the event this Agreement is terminated by either party pursuant to this Section 7, all materials provided by either party to the other under this Agreement must be returned within five (5) days after the effective date of termination.
D. In the event of termination, Client shall pay all fees due to Bizbrain up to and including the date of termination.
IX. Confidentiality
A. Confidential Information. The parties acknowledge and agree that it will be necessary for each of them to disclose or make available to each other information and materials that are confidential and proprietary and contain valuable trade secrets relating to their respective businesses and are critical to their competitive positions in the marketplace. Furthermore, the parties acknowledge and agree that some such information may already have been disclosed or made available during the course of discussions, negotiations, and services performed prior to the date of this Agreement and any applicable Work Orders (collectively the “Confidential Information”). Prior to disclosure to the other party, the disclosing party shall use reasonable efforts to designate all materials or information of a confidential or proprietary nature as Confidential Information by marking written material or information with “Confidential” or similar legend; provided, however, that even if not so marked, the following shall be considered Confidential Information: recommendations, strategies, requirements, discoveries, designs, inventions, computer software, processes, improvements, developments, methods, formulae, factors and parameters and values of such factors and parameters used in formulae, techniques, engineering, know-how, trade secrets, systems, documentation, drawings, renderings, plans, artwork, descriptions, specifications, historical or technical or research data, custom-designed computer code, proprietary computer codes (relating specifically to trade practices or secrets), and proprietary information of third parties (regardless of whether any such item is susceptible to patent, copyright, trade secret or any other form of protection).
B. Non-Disclosure. Both during and after the course of performance of this Agreement and any applicable Work Orders, each of the parties agrees: (i) to use its best efforts to protect the Confidential Information of the other party from unauthorized use or disclosure and to use at least the same degree of care it uses to protect its own confidential information of like nature; (ii) to use the Confidential Information of the other party only as permitted under this Agreement and any applicable Work Orders; (iii) not to reproduce the Confidential Information of the other party in any form except as permitted under this Agreement or any applicable Work Order; (iv) not to disclose or otherwise permit access to the Confidential Information of the other party to any third party, without the disclosing party’s prior written consent and then only to the extent reasonably required to accomplish the intent of this Agreement and any applicable Work Orders; and (v) to ensure that its employees and subcontractors participating in the performance of this Agreement or any applicable Work Orders are advised of the confidential nature of the Confidential Information of the disclosing party, that they are prohibited from using or copying the Confidential Information of the disclosing party for any purpose other than performing their obligations under this Agreement or applicable Work Orders, from revealing the Confidential Information of the disclosing party for any purpose whatsoever, and from taking any action prohibited to either party under this Section 8.
C. Directors, Officers, Employees, and Subcontractors. In addition to the foregoing, each party shall reveal the other party’s Confidential Information only to those of its directors, officers, employees, and subcontractors whose knowledge thereof is necessary to enable performance hereunder. Each party shall have in place policies enabling it to comply with the provisions of this Section 8. In the event that either party or any of its directors, officers, or employees is required by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or similar process to disclose any of the Confidential Information, such party or any such person may disclose only that portion of the Confidential Information, such party or such person is legally required to disclose. A party shall first provide notice to the other party of any such process requiring such disclosure upon receipt thereof in order to provide the other party with the opportunity to petition the court or administrative body to prevent such disclosure.
D, Exceptions. Information will not be considered to be Confidential Information if it: (i) is already, or otherwise becomes, publicly known by third parties as a result of no act or omission of the receiving party; (ii) is lawfully received, after disclosure hereunder, from a third party having the right to disseminate the information without restriction on disclosure; (iii) is furnished to others by the disclosing party without restriction on disclosure; or (iv) can be shown by the receiving party to have been independently developed by or for such party prior to the execution of this Agreement and any applicable Work Orders or any discussions, negotiations, or services performed by the parties prior to the execution of this Agreement and any applicable Work Orders. Furthermore, it is understood that each party shall be free to use ideas, concepts, know-how, methodologies, tools and techniques related to the scope of its practice, provided they contain no specific or identifiable elements unique to the other party hereto or its operations.
E. Notification. Each of the parties will notify the other promptly in writing of any circumstances of which it has knowledge surrounding any possession, use or knowledge of the Confidential Information of the other party, or any part thereof, by any person or entity other than those authorized hereunder.
F. Return. Upon the request of the disclosing party, the other party will promptly return to the disclosing party the Confidential Information of such party unless expressly authorized to make use of such Confidential Information under this Agreement and any applicable Work Orders. After termination of this Agreement or any applicable Work Orders, all documents or other items containing Confidential Information shall be promptly returned to the disclosing party.
G. Injunctive Relief. The parties agree that any breach by either party or any of its officers, directors, or employees of any provisions of this Section 8 may cause immediate and irreparable injury to the other party and that, in the event of such breach, the injured party will be entitled to seek injunctive relief as well as any and all other remedies available at law or in equity.
X. Ownership and Proprietary Rights
A. Client acknowledges and agrees that Bizbrain is the exclusive owner of all rights in the systems, programs, specifications, user documentation and other materials in existence prior to the execution of this Agreement and used by Bizbrain in the course of providing consulting services to Client, including, without limitation, all patent rights, copyrights, trade secrets, trademarks, and other proprietary rights therein (“Bizbrain’s Materials”). Client also acknowledges and agrees that Client acquires no rights in or to Bizbrain’s Materials by virtue of entering into this Agreement or receiving the Services. Client agrees it will not copy, transfer, sell, distribute, assign, display or otherwise make available Bizbrain’s Materials to third parties.
B. Bizbrain acknowledges and agrees that Client is the exclusive owner of all rights in the systems, programs, specifications, user documentation and other materials in existence prior to the execution of this Agreement and used by Client in the course of its business, including, without limitation, all patent rights, copyrights, trade secrets, trademarks, and other proprietary rights therein (“Client’s Materials”). Bizbrain also acknowledges and agrees that Bizbrain acquires no rights in or to Client’s Materials by virtue of entering into this Agreement. Bizbrain agrees it will not copy, transfer, sell, distribute, assign, display or otherwise make available Client’s Materials to third parties.
XI. Warranties
A. Bizbrain warrants that Services will be provided in a professional manner, by qualified personnel, consistent with this Agreement, any applicable Work Orders, and Bizbrain’s then-current policies. If Bizbrain does not perform Services in accordance with this warranty, Bizbrain shall re-perform the services in accordance with this warranty, this Agreement, and any applicable Work Orders. Claims under this paragraph must be submitted in writing within thirty (30) days from the later of the date of delivery or acceptance of Services.
B. Bizbrain makes no warranties, guaranties or representations of any kind, express or implied, including but not limited to any implied warranties of merchantability and fitness for a particular purpose. In no event will Bizbrain be liable for any damages, lost savings, lost profits, lost revenues, lost customers, lost data, regulatory penalties, fines or other regulatory or administrative action, or other actual, direct, indirect, incidental, special, or consequential damages, including, but not limited to damages arising from the use, loss of use, or performance of the equipment, attachments, hardware, software and data of Client, even if Bizbrain has been advised of the possibility of such damages, or any claim against Client or Bizbrain by any other party arising hereunder.
C. Client shall indemnify and hold Bizbrain harmless from and against any and all such actions or claims. Bizbrain’s liability hereunder for damages from any cause whatsoever, and regardless of the form of action, including breach of contract, breach of warranty, breach of guaranty, any form of misrepresentation, and negligence or any other form of tort, shall be limited to monies actually paid by Client to Bizbrain for services hereunder.
D. All claims of any type by Client against Bizbrain must be brought within one year from the date or this work/change order or be forever barred. The remedies expressed in this work/change order are the sole and exclusive remedies available for Bizbrain’s liability of any kind. In the event of conflict between the terms of a work/change order and the Professional Services Agreement which it complements, the provisions of the work/change order shall control.
XII. General Provisions
Relationship of the Parties
This is an agreement for professional services where Bizbrain will act as an independent contractor under this Agreement. Client and Bizbrain are independent of one another and both agree that no agency, employment, franchise or other relationship exists between the parties. Neither party shall have the authority to bind the other with respect to third parties or in any other manner.
Modification
No modification of this Agreement or any Work Order will be effective unless it is in writing and signed by authorized representatives of Bizbrain and Client. All Work Orders to this Agreement that have been signed by both parties shall be automatically appended to this Agreement.
Force Majeure
Either party shall be excused from performance under this Agreement or applicable Work Orders for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond the party’s reasonable control. Such non-performance shall not constitute grounds for default.
Waiver
Failure of either party at any time to enforce any provisions of this Agreement or to require performance hereunder shall in no way affect the validity of this Agreement or the right of either party thereafter to enforce its rights hereunder. To the extent permitted by Florida law, each party waives any provision of law, which renders any provision of this Agreement unenforceable or void in any respect.
Assignment
Neither party may assign this Agreement or its rights or obligations without the express written consent of the other party.
Neither party shall assign or otherwise transfer this Agreement without the prior express written consent of the other party, such consent not to be unreasonably withheld; provided however, either party may assign this Agreement without the other party’s consent incidental to a merger, reorganization, change of control, or sale of all or substantially all of its assets or the assets of a division. Any assignment incidental to a merger, reorganization, change of control or sale of all or substantially all of its assets or assets of a divisions shall be effected automatically by written notice of such an assignment by the assigning Party to the non-assigning Party, and the non-assigning Party hereby agrees to execute any and all documents necessary to perfect the assignment.
Severability
The provisions of this Agreement, and any Work Order, are severable and if any one or more of the provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partial enforceable provision to the extent enforceable under the Governing Law stipulated in this Agreement, shall nevertheless be binding and enforceable.
Captions and Paragraph Headings
Captions and paragraph headings used herein are for convenience only and are not part of this Agreement and shall not be used in construing this Agreement.
Notices
Client and Bizbrain each will authorize a person to represent it in all matters concerning this Agreement. The Client is responsible for providing Bizbrain with the contact information of their designated representative during the course of work order execution. The representative will be available throughout the term of this Agreement. Notices shall be sent to the representative and shall be delivered by certified mail, return receipt requested; personal delivery; telephonic facsimile; or overnight delivery. Either party may change the address to which notices shall be sent upon written notice to the other party. Notices shall be deemed effective upon personal delivery, or three (3) days after being sent. Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above. Any notice shall be effective only upon delivery.
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If to Bizbrain:
Attn: Manager, Bizbrain Technologies, LLC 34 NE 101st Street Miami Shores, Florida 33138 Email: hr@bizbraintech.com
With Copy to:
Trust Counsel, PL 201 Alhambra Circle, Ste 802 Miami, FL 33134-5108 Email: Marenco@TrustCounsel.com |
Use of Intellectual Property
Customer hereby grants to Bizbrain its affiliates, successors, and assigns, all rights to reference Customer and/or its logos, including quotes, photos taken or illustrations from Customer, for advertising and marketing purposes, including but not limited to case studies, print advertisements, reference in Bizbrain marketing materials, press releases, Internet postings and other publications electronic or printed which are produced in the ordinary course of business.
Governing Law
- It is the intention of the parties that the validity, construction, interpretation and performance of this Agreement, and any related Agreement, and all suits and special proceedings thereto appertaining, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of Florida, without regard to the jurisdiction in which any action or proceeding may be instituted.
- The Client hereby expressly consents to the personal jurisdiction of the state and federal courts located in Miami-Dade County, Florida for any lawsuit arising from or relating to their employment or this Agreement.
- Venue for any action brought under or related to this Agreement shall be solely and exclusively in Miami-Dade County, Florida.
Waiver of Jury Trial; Arbitration
Notwithstanding Bizbrains’ right to seek equitable relief as described above; all disputes, differences and controversies arising out of, under, or in connection with this Agreement or related Work Order, shall be settled and finally determined by binding arbitration before a mutually acceptable arbitrator with knowledge of the subject area in Miami-Dade County, Florida.
Prevailing Party
In the event of any litigation rising out of this agreement, the prevailing party shall be entitled to all court costs and attorneys fees at both the trial and appellate levels.
Entire Agreement
This Agreement and any and all Work Orders entered into hereunder constitute the entire understanding of the parties and supersedes all other prior agreements with respect to the subject matter herein. No representation or change to this Agreement or any Work Order shall be binding upon either party unless agreed to in writing.