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Master Services Agreement (MSA)

This Master Agreement for Clients (this “Agreement”) shall apply to all services and products provided by Arctiq US, Inc. (“Arctiq”) to the client named below (“Client”).

  1. Purchase Documents. Arctiq hereby agrees to provide to Client the services (“Services”) and/or products (“Products”) described in any Client purchase order accepted by Arctiq, quote issued by Arctiq and signed by Client, statement of work signed by both Arctiq and Client (each a “Purchase Document”). Each Purchase Document will be incorporated and made a part of this Agreement.
  2. Fees, Billing and Payment. In consideration of the Services and/or Products provided by Arctiq, Client agrees to pay Arctiq the fees and expenses set forth in each Purchase Document. Arctiq shall issue invoices to Client pursuant to the timetable described in the Purchase Document or, if no billing timetable is in the Purchase Document, on such basis as Arctiq shall reasonably determine. Client shall pay each invoice within thirty (30) days of the invoice date. Any amounts not paid by Client when due shall be subject to interest charges, from the date due until paid, at the rate of one and one-half percent (1.5%) per month or the highest interest rate allowable by law, whichever is less. If any amount due to Arctiq from Client becomes past due for any reason, Arctiq may at its option withhold delivery of further Services or Products until all invoices have been paid in full, and such withholding of Services or Products shall not be considered a breach or default of any of Arctiq’s obligations under this Agreement or any Purchase Document.
  3. Terms of Service. Arctiq shall use reasonable commercial efforts to deliver Services and Products in accordance with the timelines set forth in the applicable Purchase Document. Arctiq shall comply with all reasonable written requirements related to security, regulatory compliance, health and safety, privacy, and confidentiality that are provided to Arctiq by Client. Arctiq shall comply with all federal, state, and local laws, regulations, and ordinances applicable to the Services and shall obtain all governmental permits, licenses, and consents that are required to perform the Services. Arctiq employees and subcontractors, when working on the premises of Client or at their own office, shall observe the working hours, working rules, and holiday policy of Client. If Client directs Arctiq’s employees or subcontractors to work more than eight hours per day or on holidays, Client shall pay additional fees to Arctiq for overtime and holiday pay. If Arctiq and Client have not agreed to a fee schedule for overtime and holiday pay, they shall negotiate in good faith an appropriate fee schedule.
  4. Term and Termination. The term of this Agreement will commence on the date this Agreement is signed by Client and shall continue until either party sends the other party written notice of termination; provided, however, that if at the time such notice is sent there are one or more outstanding Purchase Documents for which all Services have not yet been provided or all Products have not yet been delivered, the term of this Agreement shall continue until all such Services have been provided and all such Products have been delivered. Either party may terminate this Agreement and any outstanding Purchase Documents if the other party is in material breach of this Agreement and such breach remains uncured: (i) in the event of a monetary breach, seven (7) days after written notice of breach is delivered to the other party and (ii) in the event of a non-monetary breach, thirty (30) days after written notice of breach is delivered to the other party. Any such termination shall be in addition to any other remedies that may be available to the non-breaching party.
  5. Confidential Information and Data Security. The parties acknowledge that during the course of Arctiq providing Services and/or Products to Client one party may disclose Confidential Information to the other party. The party disclosing Confidential Information is referred to as the “Disclosing Party” and the party receiving Confidential Information is referred to as the “Receiving Party.” Confidential Information shall mean all information disclosed by the Disclosing Party to the Receiving Party which is non-public and either proprietary or confidential in nature and related to the Disclosing Party’s business or other activities including, without limitation, information relating to the Disclosing Party’s trade secrets, business plans, products, services, advertising, financial records, suppliers, vendors, innovations, fees, customers, technology, contracts, inventions, intellectual property, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, and operating results.
  6. Intellectual Property Rights. Arctiq and Client acknowledge and agree that they will not acquire any right, title, or interest in or to the other party’s Confidential Information, data, tools, processes or methods, or any copyrights, trademarks, service marks, trade secrets, patents or any other intellectual or intangible property or property rights of the other party (“IP Rights”), by virtue of this Agreement, the Purchase Documents, the provision of Services by Arctiq, or acceptance thereof by Client. If any Arctiq IP Rights are used in a deliverable created by Arctiq as part of providing Services to Client under this Agreement, Arctiq hereby grants Client a fully paid, perpetual, nonexclusive license to use such Arctiq IP Rights for Client’s internal use only.
  7. Limited Warranty and Limitation of Liability. The Services to be performed by Arctiq are in the nature of professional technology services and advice. Arctiq warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. Arctiq does not warrant the results or achievements of the Services provided or the resulting work product and deliverables. Arctiq warrants that it has clear title, or up to date licenses, to any software it uses in connection with providing the Services or sells or otherwise provides to Client (“Software”), and that the Software will be free of viruses. Arctiq does not provide any other warranty regarding the Software or any other Products installed or supplied by Arctiq. Arctiq hereby assigns to Client all of Arctiq’s rights, if any, in any warranties provided by the manufacturer of such Software or other Products. Client’s sole and exclusive remedy for breach of the warranties set forth above is reperformance of the Services in question, or at Arctiq’s sole discretion, refund of any amounts paid by Client for such Services and, with respect to Software, replacement of the Software, or at Arctiq’s sole discretion, refund of any amounts paid by Client for such Software.
  8. Indemnification. Arctiq shall indemnify, defend and hold Client harmless from and against any and all third party claims, actions, liabilities, obligations, fines, damages, losses, demands, recoveries, deficiencies, costs or expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred by Client as a direct result of a claim made by a third party that the Services infringe upon the third party’s intellectual property rights.
  9. Insurance. At all times during the term of this Agreement, Arctiq shall secure and maintain at its own expense commercially adequate insurance coverage and shall provide a certificate of insurance to Client upon request.
  10. Subcontractors. Arctiq shall have the right to utilize subcontractors to provide Services under this Agreement. If subcontractors are used to provide Services, Arctiq shall remain solely responsible for ensuring that the Services are provided in accordance with the terms and conditions of this Agreement. Arctiq will require all subcontractors to agree in writing to confidentiality restrictions to protect Client’s Confidential Information that are at least as stringent as those set forth in this Agreement.
  11. Business Ethics. Arctiq agrees not to make, or promise or offer to make, payments in the form of money, property, services or otherwise, whether directly or indirectly, to any agency, official, employee or representative of any government or political party, with the intended purpose of influencing the recipient thereof to give favorable treatment or competitive advantage to Client or Arctiq. This section does not prohibit normal discounts and allowances, sales promotion activities, the extension of services or other customary courtesies made in the ordinary course of business.
  12. Non-Solicitation/Non-Hire. During the term of this Agreement, and for a period of one year thereafter, neither party shall solicit for employment or a contractor position, or hire or contract with, any employee or subcontractor of the other party who, within one year prior to such solicitation, hire or contracting, had contact with the soliciting party based in whole or in part upon Services or Products provided under this Agreement. For the purpose of this Section, “solicit” shall not mean a bona fide general advertisement, social media post, or similar means or the use of search firms (in each case not directed at, or targeted to, the other party or the other party’s employees, agents, or subcontractors).
  13. Suspension and Debarment. The parties certify to each other that they, and their respective stockholders, partners, members, managers, officers, directors, or other persons having primary management or supervisory responsibilities for the party, are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded for the award of contracts by, or entering into contracts with, any Federal, state or local governmental agency or department.
  14. Independent Contractor Status. The relationship of the parties hereto is that of independent contractors. Nothing in this Agreement or any Purchase Document, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees, subcontractors, or agents.
  15. Conflicting Provisions. If there is a conflict or inconsistency between a provision in a Purchase Document and a provision in this Agreement, the provision in this Agreement shall take precedence; provided, however, if a provision in a Purchase Document signed by a duly authorized representative of Arctiq explicitly states that the provision in question shall take precedence over the conflicting provision in this Agreement, the Purchase Document provision shall take precedence. If there is any conflict or inconsistency between (i) a purchase order of Client and (ii) this Agreement or any other Purchase Document, the provisions of this Agreement and the Purchase Document shall take precedence unless Arctiq has agreed to the conflicting or inconsistent purchase order provision in a writing signed by a duly authorized representative of Arctiq.
  16. Force Majeure. Neither party shall be liable for any default or delay in the performance of its obligations hereunder if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or other acts of God; acts of war, terrorism, riots, civil disorders, rebellions or revolutions in the United States; viruses or pandemics; strikes, lockouts, or labor difficulties; or any other similar causes beyond the reasonable control of such party that could not have been prevented by reasonable precautions.
  17. Dispute Resolution. In an effort to resolve informally and amicably any unresolved claim, controversy, disagreement, or dispute arising out of or related to the interpretation, performance, enforcement, termination, or breach of this Agreement (a “Dispute”), each party shall notify the other in writing of any Dispute hereunder that requires resolution. Such notice shall set forth the nature of the Dispute, the amount involved, if any, and the remedy sought. Each party shall designate an employee to investigate, discuss and seek to settle the matter between them. If the two designated employees are unable to resolve the dispute within ten (10) days after such notice is given, the Dispute shall then be submitted simultaneously by written notice (the “Second Notice”) to an officer of Arctiq and to an officer of Client for consideration. If these officers are unable to resolve the Dispute within thirty (30) days after the delivery of the Second Notice, then the Dispute shall be submitted at the request of either party to final and binding arbitration, conducted in English, before a single, neutral, mutually acceptable arbitrator employed by JAMS or a similar entity which employs retired judges as neutral arbitrators. Each party shall bear its own costs and expenses related to the arbitration. Any arbitration proceeding shall be held in Orange County, California. The decision of the arbitrator shall be final, binding, and non-appealable.
  18. Attorneys’ Fees. In the event of any breach of this Agreement or any Purchase Document, or dispute with respect to matters arising hereunder or thereunder, the prevailing party shall be entitled to recover from the other party all costs and expenses incurred in connection with such breach or dispute, including, without limitation, reasonable attorneys’ fees.
  19. Governing Law. The laws of the State of California shall govern the validity, construction, performance, and enforcement of this Agreement and all Purchase Documents without regard to conflict of law rules.
  20. Miscellaneous. This Agreement and the Purchase Documents may not be amended or modified except on the written agreement of the parties. No party shall have the right to assign this Agreement or any Purchase Document, or any of its rights or obligations hereunder or thereunder, without first obtaining the prior written consent of the other party; provided, however, that Arctiq shall have the right to assign this Agreement and any outstanding Purchase Document to the purchaser of all or substantially all of Arctiq’s business assets. This Agreement supersedes all agreements, whether written or oral, previously made between the parties relating to the subject matter hereof. This Agreement and each Purchase Document may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one in the same agreement. Except as otherwise provided herein or in any Purchase Document, this Agreement and each Purchase Document shall be binding upon, and inure to the benefit of, the parties hereto and the respective heirs, successors and permitted assigns. Any failure of any party hereto to comply with any obligation, covenant, agreement, or condition herein or in any Purchase Document may be waived by the other party, but any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or condition shall not operate as a waiver or estoppel with respect to any subsequent or future failure. If any one or more of the provisions or parts of a provision contained in this Agreement or any Purchase Document shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions or parts of a provisions of this Agreement or the Purchase Document and the remaining provisions shall continue in full force and effect.
  21. Authorized Signatories. The person signing this Agreement on behalf of Client represents to Arctiq that he or she has the authority to sign this Agreement and bind Client to the provisions in this Agreement. The person signing this Agreement on behalf of Arctiq represents to Client that he or she has the authority to sign this Agreement and bind Arctiq to the provisions in this Agreement.

Client shall have the right to put in place such restrictions on access to its premises and computer network as it deems necessary in its sole discretion in order to safeguard its Confidential Information (as defined below) and Arctiq shall require its employees and subcontractors to abide by such access restrictions. Arctiq shall, if requested by Client, at Client’s sole expense, obtain a background check on each Arctiq employee and subcontractor who will enter Client’s premises or otherwise have access to Client’s computer network. If Client requires a background check, Arctiq will not allow an employee or subcontractor to enter Client’s premises or have access to Client’s computer network unless Client is satisfied in its sole discretion with the results of the background check.

If Client reasonably requests that an individual Arctiq employee or subcontractor cease providing Services to Client, Arctiq shall comply with such request, provided that Client shall pay Arctiq for all Services performed prior to the date of termination. In such event, Client shall provide two weeks advanced written notice to Arctiq unless the circumstances dictate a shorter notice period. Arctiq shall use reasonable commercial efforts to promptly replace any Arctiq employee or subcontractor removed at Client’s request. If Arctiq is not able to replace such employee or subcontractor within five (5) business days after the employee or subcontractor is removed, Client shall have the right to terminate the portion of the Purchase Document applicable to such removed employee or subcontractor by providing written notice to Arctiq. If any Arctiq employee or subcontractor fails to perform in accordance with Client’s work site policies or the applicable Purchase Document and is removed by Arctiq at Client’s request, Arctiq shall provide a credit to Client of one (1) project daily rate for such non-performance. Subject to the limited warranty provided below, this credit shall be Arctiq’s sole obligation to Client with respect to a Arctiq employee or subcontractor who fails to perform in accordance with Client’s work site policies or the applicable Purchase Document.

The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to its employees, subcontractors, consultants, and representatives who have a need to know such information in connection with the Services or Products provided to Client by Arctiq. The Receiving Party shall only use Confidential Information in connection with the Receiving Party’s business relationship with the Disclosing Party and shall not use the Confidential Information for any other purpose or disclose it to any third party. The Receiving Party’s obligations to protect the Confidential Information will survive for three (3) years after the termination or completion of the Purchase Document under which the Confidential Information was disclosed by the Disclosing Party. These confidentiality obligations shall not apply to any information which: (i) was lawfully in the Receiving Party’s possession before receipt from the Disclosing Party, (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party, (iii) is developed by the Receiving Party independently of any Confidential Information it receives from the Disclosing Party, or (iv) the Receiving Party receives from a third party free to make such disclosure without, to the Receiving Party’s knowledge, breach of any legal or contractual obligation to the Disclosing Party. If the Receiving Party is confronted with legal action to disclose Confidential Information it shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information that its legal counsel advises must be disclosed. All Confidential Information shall remain the property of the Disclosing Party. All copies of Confidential Information shall be returned to the Disclosing Party, or at the option of the Disclosing Party destroyed, promptly upon the Disclosing Party’s written request.

To the extent Arctiq stores any of Client’s Confidential Information on Arctiq’s network or systems, Arctiq shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of such Confidential Information.

THE WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, WORK PRODUCT, DELIVERABLES, SOFTWARE OR PRODUCTS PROVIDED TO CLIENT BY ARCTIQ, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. ARCTIQ DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. IN NO EVENT SHALL ARCTIQ BE LIABLE TO CLIENT UNDER THIS AGREEMENT OR ANY PURCHASE DOCUMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF TIME, LOSS OF DATA, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. EXCEPT WITH RESPECT TO ARCTIQ’S INDEMNIFICATION OBLIGATION FOR THIRD PARTY INFRINGEMENT CLAIMS, ARCTIQ’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIM RELATING TO THE SERVICES OR ANY SOFTWARE OR EQUIPMENT PROVIDED BY ARCTIQ SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT TO ARCTIQ FOR THE SERVICES, SOFTWARE OR EQUIPMENT GIVING RISE TO THE CLAIM.