Master Service Agreement

Last updated: August 31, 2021

Standard Terms

These Standard Terms (this “Standard Terms”) are incorporated by reference into an agreement by and between Service Provider on the one hand and Customer, as each term is defined separately on a Services Agreement incorporating these terms by reference (the “Master Agreement”, the combination of the Master Agreement and these Standard Terms are the “Agreement”). Capitalized terms used in these Standard Terms but not defined herein shall have the meaning given in the Master Agreement.

Service Provider Obligations

Service Provider shall:

Designate its employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:

A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Service Provider Contract Manager”).
A number of employees or contractors that it deems sufficient to perform the Services set out in the Master Agreement, (collectively, with the Service Provider Contract Manager, “Provider Representatives”).

Make no changes in Provider Representatives except:

Following notice to Customer.
Upon the resignation, termination, death, or disability of an existing Provider Representative.
At the reasonable request of Customer, in which case Service Provider shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.

Customer Obligations

Customer shall:

Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager”), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
Require that the Customer Contract Manager respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services.
Cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services.
Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Provider’s provision of the Services.
Provide Service Provider such access to Customer’s premises and such office accommodation and other facilities as may reasonably be required by Service Provider, for the purposes of performing the Services.
Provide such information as Service Provider may require in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects.
Ensure that all Customer Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant legal or industry standards or requirements.
The several individuals that comprise Customer agree that they are jointly and severally liable for all obligations, financial and otherwise, agreed to by Customer under this Agreement.

Fees and Expenses

In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Master Agreement according to the schedule provided. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this Section 3 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Master Agreement, said fees will be payable within 5 business days of receipt by the Customer of an invoice from Service Provider.

Neither Party shall be required to accept any changes in any Master Agreement unless such amendment, alteration, or change is agreed to by the Parties in writing, along with appropriate changes in deadlines and fees.

Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the Master Agreement, within 5 days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation.

Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts when due hereunder and such failure continues for 5 days following written notice thereof.

Limited Warranty

Service Provider warrants that it shall perform the Services:

In accordance with the terms and subject to the conditions set out in the respective Master Agreement and these Standard Terms.
Using personnel of industry standard skill, experience, and qualifications.

Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:

Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than 30 days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.3.
In the event the Agreement is terminated pursuant to Section 4.2(a) above, Service Provider shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 4.3 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
The foregoing remedy shall not be available unless Customer provides written notice of such breach within 30 days after delivery of such Service or Deliverable to Customer.

EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 4.1, (A) SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

Intellectual Property

“Deliverables” means all work product and other materials that are delivered to Customer hereunder by Service Provider in the course of performing the Services.

“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, and (d) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Pre-Existing Materials” means all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider prior to the commencement of this Agreement.

Except as set forth in Section 5.5, Customer is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all Intellectual Property Rights therein. Service Provider agrees, and will cause its Service Provider Personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire,” such Deliverables are hereby deemed a “work made for hire” for Customer. To the extent that any of the Deliverables do not constitute a “work made for hire,” Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Customer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.

Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Customer a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with Section 17), non-sublicenseable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Deliverables for any and all purposes/solely to the extent reasonably required in connection with Customer’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.

Notwithstanding any other provision of this Agreement, Service Provider shall have the right, at any time during or after the term of this Agreement, to disclose, publish, disseminate, incorporate into other works, and use general ideas, concepts, know-how, techniques, code snippets, libraries, and architectures contained in or derived from the Services (“Residual Information”). Nothing in this Section permits Service Provider to:

disclose, publish, disseminate, or use any of Customer’s financial, statistical, customer, or personnel data or business plans; or
intentionally memorize Customer’s Confidential Information for the purpose of retaining and subsequently using or publishing it or disseminating or disclosing it to a third party.

Customer hereby grants Service Provider a limited, irrevocable, perpetual, fully paid-up, royalty-free, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any fragment of piece of the Deliverables to the extent incorporated in, combined with, or otherwise necessary for Service Provider to use the Residual Information as provided in Section 5.6.

Confidentiality

From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without improper use of any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 6 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.

Right to Compete

Nothing in this Agreement shall be construed to limit Service Provider’s right, opportunity, or ability to enter into agreements with one or more third parties that may now or in the future offer goods or services that compete with Customer’s current or future goods or services (“Potential Competitors”). Customer expressly acknowledges and agrees that Service Provider may provide services to Potential Competitors that are similar to or the same as the Services under this Agreement.

Exclusive Right to Perform

Customer shall during the term of this Agreement not engage any party other than Strides, including by means of Customer’s employees, to perform any software development services, software code development, application architecture development, cloud services procurement or configuration, database architecture or management, or similar services. Any violation of this Section 8 shall be deemed to be an irreparable breach of a material term of this Agreement. The parties agree that calculation of the damages associated with a breach of this Section 8 would be difficult, if not impossible, and hereby agree that Strides shall be entitled to liquidated damages in the amount of the available amount of any and all Retainers under any Master Agreement. To the extent that technical specialists are required to provide the services that Customer needs, Customer agrees that such specialists shall be engaged as subcontractors to Customer through Strides. Customer agrees that in exchange for Strides’ management of subcontractors under this Agreement, Customer is entitled to add a 10% management surcharge to fees billed by the subcontractors.

Term, Termination, and Survival

This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services unless sooner terminated pursuant to Sections 9.2, 9.3, or 9.4.

Either Party may terminate this Agreement for any or no reason by providing at least thirty-days prior written notice to the other party. However, if Customer terminates this Agreement pursuant to this Section 9.2 and provides fewer than sixty-days prior written notice, Customer acknowledges and agrees that any amounts remaining in any Retainer at the termination of this Agreement are forfeited to Strides as liquidated damages.

Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:

Materially breaches this Agreement, and such breach is incapable of cure or the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
Becomes insolvent or admits its inability to pay its debts generally as they become due.
Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 14 business days or is not dismissed or vacated within 45 days after filing.
Is dissolved or liquidated or takes any corporate action for such purpose.
Makes a general assignment for the benefit of creditors.
Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Notwithstanding anything to the contrary in Section 9.3(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for 15 days after Customer’s receipt of written notice of nonpayment; or (b) more than 2 times as it relates to payment;

The rights and obligations of the Parties set forth in this Section 9.5 and in Sections 4, 4.3, 6, 10, 12, 16, 18, 20, 21, and 22, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

Limitation of Liability

IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR INFRINGEMENT, ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER UNDER THIS AGREEMENT.

Entire Agreement

This Agreement, including and together with these Standard Terms, the Master Agreement, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of these Standard Terms and the terms and conditions of the Master Agreement, the terms and conditions of the Master Agreement shall supersede and control.

Right to Market

Customer grants to Strides a limited license to Customer’s trademarks, names, and brands for the limited purpose of allowing Strides to market its services to other potential customers. The license granted under this Section 12 shall continue until terminated in writing by Customer. Customer acknowledges and agrees that Strides may generally describe the types of services provided by Strides to Customer as part of its marketing efforts. Customer agrees that Strides’ marketing activities under this Section 12 are deemed permitted under Section 6 of this Agreement. If Strides chooses to provide more details in its marketing than is permitted under this Section 12, Strides shall submit the proposed marketing materials to the Customer in writing for Customer’s approval, which shall not unreasonably be withheld. If Customer does not accept or reject Strides’ marketing materials within ten (10) business days of being submitted, such marketing materials shall be deemed approved for use by Strides.

Notices

All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth on the Master Agreement or below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified, registered mail (in each case, return receipt requested, postage prepaid), or email. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 13.

Notice to Service Provider:
3300 N Triumph Blvd Suite #100 to Strides Development, LLC
Lehi, UT 84043
United States
Attention: Austin Betzer, CEO

Severability

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Amendments

No amendment to, modification of, or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

Waiver

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Assignment

Customer shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 17 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.

Successors and Assigns

This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.

Relationship of the Parties

The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

No Third-Party Beneficiaries

This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Choice of Law

This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Utah, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Utah.

Choice of Forum

Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the federal or state courts located in Utah County in the State of Utah, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 13, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Force Majeure

The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, famine, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage, provided that, if the event in question continues for a continuous period in excess of 30 days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.