Master Services Agreement (MSA)
Date of Last Revision: 26 January 2024
Communication is key in any relationship. This page, and our Statement of Work, will provide clarity as to how we will work together. Thank you for trusting us.
We can’t have an Agreement without “legalese,” so please be patient (see below) . . .
1. Who You Are Dealing With
WorkTech Advisory Inc. is a Delaware corporation, headquartered in the USA. We officially incorporated in 2022.
This Master Services Agreement (the “Agreement,” or “MSA”) is entered into by and between WorkTech Advisory Inc, ("Company" or "us") and ("Client" or "you"), hereinafter known as the "Parties" is made and entered into effective as specifically dated on the Acceptance (Section 25, below) of this Agreement (the "Effective Date).
2. Our Purpose
2.2 Client may also purchase Services from Company’s Affiliates pursuant to this Agreement. “Affiliates” means any legal entity that, directly or indirectly: (a) is owned and/or controlled by, (b) owns and/or controls, or (c) is under common ownership and/or control with Company. Any Company Affiliate executing an SOW will be deemed Company for the purposes of the applicable SOW, and invoices will be issued by such Company Affiliate.
3. Definitions
3.1 “Services” shall mean consulting, advising, and other professional services performed by Company for Client pursuant to a Statement of Work, agreed to by the Parties, under this Agreement. The Statement of Work will include a schedule for performance of the Services, subject to availability of Company staff and Client personnel.
3.2 “Statement of Work” shall mean Company's standard form for ordering Services (a “Statement of Work”) which shall specify the Services and applicable fees. Each Statement of Work shall be governed by the terms of this Agreement and shall reference the Effective Date specified in the signature process.
3.3 “Customer” shall refer to both Client’s and/or Company’s customers.
3.4 "Intellectual Property” shall mean all copyrights, trademarks, patents, ideas, inventions, concepts, know-how, techniques, methods, processes inventions or discoveries, whether patentable or not patentable. Any Intellectual Property that was in the possession of either Party prior to this Agreement shall remain exclusively the property of that Party during and after the termination of this Agreement.
3.5 "Company Materials" shall mean all tangible and intangible assets, resources, data, information, intellectual property, proprietary technology, and materials owned or controlled by Company.
4. The What
4.1 This Agreement and Statement of Work (SOW) constitute the entire Agreement between the Parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written.
4.2 Client is not relying on any representations, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding, except in writing, signed by a duly-authorized representative of each party. No other act, document usage, or custom shall be deemed to amend or modify this Agreement or a Statement of Work.
4.3 If there is an inconsistency between this Agreement and the Statement of Work, the SOW prevails.
5. Our Staff
Our staff are a combination of employees and independent contractors across-the-globe with geographic concentrations in the USA and Europe. The nature of our work is very attractive to extremely senior professionals and executives, who value flexibility while continuing to work with a selective portfolio of accounts. Our Staff expects to work with the top level of our Client's leadership team.
6. Not Your Employees
6.1 The relationship of Company to Client is that of an independent contractor. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes. Each party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.
6.2 Client recognizes that Company provides management consulting Services. Client is free to accept Company's advice, or not. In that regard, Client recognizes that none of Company's services are to be officially considered “management” or “officers” in the way that a full-time employee with the equivalent title might traditionally be viewed.
7. Company's People Are Our Most Precious Resource (Covenant Not to Hire)
7.1 Each party agrees that it shall not for a period of two years after termination of any Statement of Work associated with this Agreement hereof for any reason, employ or affirmatively assist any other person, firm, partnership, association, corporation or business organization, entity or enterprise in employing or soliciting for employment any person employed or hired by the other party with whom the party making this covenant had contact arising out of this Agreement.
7.2 If a Company resource is hired by the Client during the engagement or the two (2) years following any such engagement, a flat fee of $ 90,000 USD shall apply. This fee will be paid by the Client upon hire.
7.3 For the sake of clarity, each Party may continue to use its usual and customary methods to solicit and hire employees, including published Internet and print advertisements, state employment offices or other generally accepted methods; provided that it will not hire or employ for its own behalf any respondent to such advertisements that meets the criteria set forth above herein without the express written approval of the other party.
7.4 In addition to the above-liquidated damages, both Parties may seek equitable relief from either Party.
8. We Love to Brag About Working Together (Publicity/Marketing)
Both Parties agree to permit the use of their names, trademarks, logos, trade names, and a description of the business relationship in each other’s sales and marketing paper or electronic literature such as presentations, case studies, advertising, social media, or publicly-disseminated materials and press releases (with the prior written approval of both Parties). From time-to-time, both Parties may request the following activities:
8.2 Responding to prospective client or investor requests for references. The Parties hereto will contact each other to request permission and to arrange for a mutually-convenient time to schedule the conversation.
8.3 Participating in, providing input into, and approving a formal case study.
8.4 Both Parties shall agree upon the types of materials to share the successful outcome of any initiatives.
9. Fees and Payment
9.1 Company shall invoice Client for Services and Materials provided and expenses incurred as specified in the appropriate Statement(s) of Work (SOWs). Client shall pay such invoices upon receipt without withholding, deduction or offset of any amounts for any purpose. An additional service charge of five percent (5%) per month will be assessed for past due charges.
9.2 Client will be responsible for all incidental expenses incurred by Company in the course of providing services hereunder, including reasonable approved travel, room and board, transportation fees, courier and other shipping fees, all of which shall be billed at actual cost. Company shall invoice Client for such services and expenses.
9.3 Invoices not objected to in writing shall be deemed admitted, final and approved. Any amount disputed shall be identified in writing by Client and the balance of the invoice less the amount disputed, paid in accordance with this provision. Disputed amounts shall be paid if determined to be owed, within 10 days of resolution. In the event Client fails to pay when due, Client shall be liable for all resulting collection costs.
9.4 All fees quoted are exclusive of any taxes, including sales, use, excise, duties, value-added or service taxes required to be assessed on the Services and Materials provided. Client shall be responsible for paying such taxes, which will appear, if relevant, as a separate item on Company’s invoices. Client shall pay such amount unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Client shall be solely responsible for any taxes imposed on payments to Company, except for taxes due to Company’s taxing authorities based on Company’s income.
9.5 Bank fees associated with payments made via wire transfer outside of the USA or methods such as bank cards will be handled as a reimbursable approved expense and will be invoiced accordingly.
9.6 Client shall provide contact information for invoicing as part of the Acceptance of this Agreement.
10. Intellectual Property & Proprietary Materials
10.1 Client shall have ownership of all reports and analysis arising as a result of the services provided hereunder (“Deliverables,” if defined in any attached SOWs). To the extent that any of Client’s pre-existing intellectual property is combined with any Company Materials, Client shall retain sole ownership of such pre-existing intellectual property. To clarify, it is assumed that Deliverables may be used by the Client for any non-competing associated product(s) and/or service(s) that are taken to market.
10.2 Company Materials are and will at all times remain Company's property. Company may modify, translate, or expand Company Materials to apply to the unique requirements of Client. Should this occur, it is understood and agreed that such modification, translation, and/or expansion will constitute a derivative of Company and as such will remain Company's intellectual property. At no time may Company Materials be disclosed to third Parties, sold, assigned, leased, copied or otherwise made available or disposed of or commercially exploited or marketed in any way, with or without charge, unless express permission has been granted by Company. Client may not use Company Materials to create, develop or enhance any competing products or services. Client further agrees that it will not reverse engineer, modify, disassemble, or copy any Company Materials provided by Company for any purpose, nor will it authorize and/or engage anyone else to reverse engineer, modify, disassemble, or copy any such materials.
11. Mutual Confidentiality
11.1 Confidential Information. Each party acknowledges that it may receive or have access to information that is confidential to the other ("Confidential Information"). Each party's Confidential Information includes, but is not limited to, its software programs and related documentation, formulas, methods, know-how, processes, designs, new products, developmental work, marketing requirements, marketing plans, Customer names, prospective Customer names, and all information clearly identified at the time of disclosure as confidential. Confidential Information also includes all information received from third Parties that either party is obligated to treat as confidential and oral information that is identified by either party as confidential. Confidential Information does not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure or is approved for release by the written authorization of the disclosing party; (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information; or (v) the other party is required to disclose by law or valid order of a court or other governmental authority; provided, however, that the other party will first have given notice to the owning party and have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. The Parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose, other than in connection with the performance of this Agreement. Each party agrees to take all reasonable steps to ensure that the other party's Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. The Parties agree to hold each other's Confidential Information in confidence during the Term of this Agreement and for a period of two (2) years thereafter.
11.2 Trademarks and Trade Names. Both Parties grant to each other the right to use any of the other Party’s trademarks, trade names, logos, and service marks that describe the solutions, software or services of the other Party, as now existing or hereafter developed (the “Marks”), but only in connection with its obligations under this Agreement. Both Parties acknowledge that the extent to which the Parties provide internal use software or solutions or permit each other, pursuant to this Agreement, to use the Marks, the Parties hereto are not paying any consideration for such use of each other’s Marks, and nothing contained in this Agreement shall give either Party any interest in, or authority to do anything which may adversely affect the validity or enforceability of any of the Marks or the rights of the other Party therein. Both Parties shall not register in their own name any of the other party’s Marks or solutions. Both Parties agree that the use of the other Party’s Marks shall be in compliance with the standards for use of Marks supplied by both Parties from time to time. The foregoing notwithstanding, both Parties agree: (i) not to attach any additional trademarks, logos or trade designations to any of the other Party’s solutions, software or services without the express written consent of the other Party; (ii) not to affix any Mark to products other than the Software without the express prior written consent of the other Party; and (iii) both Parties shall promptly provide each other with any additional information they may request with regard to each other’s use of any Mark.
12. Assignment
Neither party may sell, assign or transfer this Agreement, or the rights accorded thereunder, without the written consent of the other party, except in the event of the assignor’s merger, consolidation, spin-off, split-off, or acquisition. In that event, assignment will be restricted to any survivor, subsidiary or successor. Any prohibited assignment will be void and operate to terminate this Agreement. Notwithstanding the foregoing, Company may use subcontractors to perform services, in our sole discretion and without notice; provided that the use of any such subcontractors shall not affect our obligations or responsibilities to you.
13. Term and Termination
13.1 Term. This Agreement shall commence on its Effective Date. Either party may terminate this Agreement at any time by providing the other party with a thirty (30) day advance written notice. Any Statement of Work outstanding at the time of termination shall continue to be governed by this Agreement as if it had not been terminated, unless the Parties also agree in writing to terminate such Statement of Work.
13.2 Termination for Breach. A party may terminate this Agreement and/or a Statement of Work if the other party is in material breach of the Statement of Work and has not cured the breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty-day notice period and pursues cure of the breach in good faith.
13.3 Effect of Termination. Termination of this Agreement and/or any Statement of Work shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Client of its obligations to pay all charges that accrued prior to such termination.
14. Limitation of Liability
In no event shall either party be liable for any indirect, incidental, special, or consequential damages, or damages for loss of profits, revenue, data, or use incurred by the other party, arising out of the performance of this Agreement, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. Company's liability for damages hereunder shall in no event exceed the amount of fees paid by Client under the applicable Statement of Work, prorated over a five-year term from the Effective Date.
15. Indemnification
Both Parties hereto shall defend, hold harmless and indemnify each other, their subsidiaries, affiliates, and their employees, agents and representatives from and against claims, suits, actions, demands, damages, liabilities, losses, fines, penalties, costs and expenses (including reasonable attorneys' and experts' fees) (collectively “Damages”) arising out of any of the following actions:
15.1 Any actual or alleged infringement or misappropriation of any patent, trademark, trade name, trade dress, copyright or other right relating to any Product or Service;
15.2 Any breach of the Agreement Documents;
15.3 Any actual or alleged injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, claimed to result in whole or in part from the execution of this Agreement and the services related to this Agreement;
15.4 Any actual violation of any Laws relating to the execution of this Agreement, or to the manufacture, shipment, import, labeling, weights and measurements, use or sale of the Services and/or Materials resulting from this Agreement;
15.5 Any other act, activity or omission of either party or any of its affiliates, employees, representatives, agents or contractors, including activities of either party’s employees, consultants, contractors, or agents on the premises of the other party and the use of any vehicle, equipment, fixture or material in connection with any sale or service related to this Agreement.
16. We Are Human (Warranty Disclaimer)
16.1 The Services and Company Confidential Information and anything provided in connection with this Agreement are provided “as-is,” without any warranties of any kind, expressed or implied, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
16.2 COMPANY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE COMPANY TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE COMPANY SERVICE, COMPANY DOES NOT GUARANTEE THAT THE COMPANY SERVICE CANNOT BE COMPROMISED. CLIENT UNDERSTANDS THAT THE COMPANY SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
17. Export Controls
Company's software and technology are subject to the export control laws and regulations of the United States and Canada, and related government agencies, and may be subject to export or import regulations in other countries. Both Parties agree to comply strictly with all such regulations and acknowledge that they have the responsibility to obtain licenses to export, re-export, or import software and technology.
18. Governing Law and Venue
This Agreement is governed by and construed and enforced in accordance with the laws of the State of Delaware, USA, without regard to the principles or provisions of its conflict of laws. Each party hereto hereby submits to the exclusive jurisdiction of any federal or state court situated in or near New Castle County, Delaware, with respect to the interpretation and enforcement of the provisions of this Agreement and hereby waives as a defense that it is not subject thereto or that venue of the lawsuit is improper.
19. Force Majeure
19.1 Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
19.2 To the extent caused by force majeure, no delay, failure or fault will constitute a breach of this Agreement. Both Parties will use commercially-reasonable efforts to mitigate the effect of a force majeure event. If such an event continues for a period more than 90 days, either party may terminate this Agreement immediately upon written notice.
20. Severability
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
21. Waiver
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of either party’s intellectual property rights, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued.
22. Notices
All notices required under or regarding this Agreement will be in writing and will be considered given if delivered in person, mailed via registered or certified mail (return receipt requested and postage prepaid), emailed or sent by courier (confirmed by receipt) addressed to the Parties signing this Agreement.
23. Novation
Both Parties reserve the right to change their names during the course of this Agreement or thereafter.
24. Survivability
The rights and obligations which by their nature are intended to survive any expiration or termination of this Agreement shall survive. Confidentiality, Publicity/Marketing, Intellectual Property & Proprietary Materials, Limitation of Liability, Indemnification, Warranty Disclaimer, Covenant Not to Hire, and Assignment for a period of five (5) years.
25. Acceptance of Agreement!
By checking a box indicating your acceptance, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives, as of the Effective Date, as well as any additional terms and conditions which Company and Client may agree to in writing on a SOW. Company may refuse to offer Service to any entity (life is too short not to), and if not authorized in any jurisdiction that does not give effect to all provisions in this Agreement.